Of Cake Shops and Coffee Shops: Recent Controversies Raise The Question Of When Owners Can Refuse Service To Those With Opposing Views

A viral video from a Seattle coffee shop illustrates the growing tension between free speech and religious exercise values.  In the Facebook video, Ben Borgman — the owner of Bedlam Coffee shop — threw a Christian group out of his shop while spewing vulgar and obscene comments about their views.  There are a growing number of such conflicts as store owners assert their right to refuse to serve those with opposing religious or social values.  On December 5, the Supreme Court will hear the argument in Masterpiece Cakeshop v. Colorado Rights Commission.  That case will determine if a cake shop owner could refuse to prepare a cake for a same-sex couple on the basis of his opposing religious values.

I have supported a free speech approach to such cases.  I believe that a Jewish cake shop owner should be able to refuse to make a Mein Kampf cake or an African American owner should be able to refuse to make a White Supremacist cake.  While they cannot refuse to sell existing cases, a line can be drawn over expressive acts like the preparation of cakes or work as photographers.  I can see no other approach that can thread this needle.

The Seattle case reflects the difficult line drawing for such cases.  In the video, Borgman confronts the group, Abolish Human Abortion, and says “I’m gay. You have to leave.”   One of the advocates, Caytie Davis, asks if he is denying them service, and Borgman says that he is.  He is doing so based on their religious and political views as reflected on a flier that he obtained outside.  However, the group was not engaging in advocacy inside the coffee shop.  He was not being asked to prepare a special dish or drink referencing opposing values.  Rather, they simply came in for coffee after handing out religious pamphlets.   They tell Borgman that they did not pass out literature in his shop but he tells them to “shut up.”

Borgman holds up one of the pamphlets and declares “This is offensive to me. I own the place. I have the right to be offended.”  True, but does he have to right to bar people solely on the views that they hold?

Borgman then becomes highly offensive and demands to know if activist Jonathan Sutherland would “tolerate” a sex act between two men.  He adds “Can you tolerate my presence? Really?” the owner asked. “If I go get my boyfriend and f**k him in the a** right here you’re going to tolerate that? Are you going to tolerate it?”

Sutherland remains calm and says “That would be your choice.”

Borgman yells in response “Answer my f***ing question!” No, you’re going to sit right here and f***ing watch it! Leave, all of you! Tell all your f**king friends don’t come here!”

As the group leaves, one of the women stops to tell Borgman that Christ can save him “from that lifestyle.”  Borgman responds “Yeah, I like a**,” the owner spat. “I’m not going to be saved by anything. I’d f**k Christ in the a**. Okay? He’s hot.”



The question is whether Borgman has a right to toss out people simply because they do not share his values.  If so, can a cake shop owner refuse to prepare a cake for a same-sex couple?  In the Supreme Court case, owner Jack Phillips did not refuse to serve the same-sex couple if they wanted to buy an existing cake. He refused to prepare a cake with a message that he found offensive.  This is in line with the long-standing principle that the government cannot require a person “to utter what is not in his mind.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 634 (1943). In Seattle, Borgman refuses to serve the group in an non-expressive act of supplying existing coffee or other items.   Under Borgman’s approach, any owner could toss out people who did not support their views on homosexuality or the environment or religion — even though they are not demanding to express those values in this business.

Where would you draw the line in cases like those of cake shop owner Phillips and coffee shop owner Borgman?

387 thoughts on “Of Cake Shops and Coffee Shops: Recent Controversies Raise The Question Of When Owners Can Refuse Service To Those With Opposing Views”

  1. “I have supported a free speech approach to such cases. I believe that a Jewish cake shop owner should be able to refuse to make a Mein Kampf cake or an African American owner should be able to refuse to make a White Supremacist cake. While they cannot refuse to sell existing cases, a line can be drawn over expressive acts like the preparation of cakes or work as photographers. I can see no other approach that can thread this needle.”

    “This is in line with the long-standing principle that the government cannot require a person “to utter what is not in his mind.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 634 (1943).”

    I agree. This is an issue that I have long struggled with. How do you balance a business owner’s rights with a customer’s?

    I think drawing the line at expression may be the only way to delineate both territories. However, I do think it would be a difficult situation if a black coffee shop owner had to serve a bunch of KKK in their stupid robes when they take a break from protesting. Oh my God, that would be hard. But if we clarify the limit to expression we can move forward as a society.

    I understand art, T-shirt slogan screening, custom cakes, and interpretive dance would all fall under expression. But does photography count, too? Isn’t photographing an event using your creativity to create a joyful mood? I think any artistic or communicative effort should count. That way, everyone gets some protection.

    I did not find Borgman offensive because of his sexuality. I found him offensive because if I’m in a coffee shop, I don’t want to hear the owner screaming a threat to have sex in front of the customers. Gay or straight, keep it in private. A coffees shop should be Rated G and family friendly. For God’s sake, how does he heel toe it through life if he cannot tolerate anyone criticizing his choices? There is always going to be someone somewhere who thinks he’s doing something wrong. Get over it. We are all judged on all sides – do we go to church, not go to church, pray at school, have sex before marriage, recycle, drive a diesel or an SUV, not carpool, water our lawn, vote for Trump, vote for Hillary…The list just goes on and on in the holier than thou wars.

    Once again, the rules do not apply because he is fighting the good fight. One cannot commit evil upon an evil person. That’s the rationale behind sexual harassment and discrimination of Christians, mocking Christianity, infringing upon free speech of conservatives, saying racial slurs against black conservatives, and saying misogynistic remarks about female conservatives. We wouldn’t have a cross in a jar of urine while decrying the mocking of Islam without such a disparity.

    Double standard is the standard.

    1. “I do think it would be a difficult situation if a black coffee shop owner had to serve a bunch of KKK in their stupid robes when they take a break from protesting.”

      Reverse the argument: would it be a difficult situation for a coffee shop owner who’s a member of the KKK to serve a group of Black Lives Matters protesters decked out in protest tee shirts and carrying protest posters? I think many people would be willing to condemn my scenario more quickly than yours, but why? It’s an interesting thought exercise.

      1. Emanuelle – as long as they are not protesting inside, I think he should be required to serve them. However, I agree about the Mein Kampf cake, etc. I disagreed with the courts on the wedding cake issue. I thought the courts were wrong. It is in front of the SC now, so we shall see.

      2. Ema, did you say KKK? So did Muhammad Ali.

        To wit,

        “In a wide-ranging 1968 interview with Bud Collins, the storied Boston Globe sports reporter, Ali insisted that it was as unnatural to expect blacks and whites to live together as it would be to expect humans to live with wild animals. “I don’t hate rattlesnakes, I don’t hate tigers — I just know I can’t get along with them,” he said. “I don’t want to try to eat with them or sleep with them.”

        Collins asked: “You don’t think that we can ever get along?”

        “I know whites and blacks cannot get along; this is nature,” Ali replied. That was why he liked George Wallace, the segregationist Alabama governor who was then running for president.
        Collins wasn’t sure he’d heard right. “You like George Wallace?”

        “Yes, sir,” said Ali. “I like what he says. He says blacks shouldn’t force themselves in white neighborhoods, and white people shouldn’t have to move out of the neighborhood just because one black comes. Now that makes sense.”

        This was not some inexplicable aberration. It reflected a hateful worldview that Ali, as a devotee of Elijah Muhammad and the segregationist Nation of Islam, espoused for years. At one point, he even appeared before a Ku Klux Klan rally. It was “a heck of a scene,” he later boasted —

        Clansmen with hoods, a burning cross, “and me on the platform,” preaching strict racial separation. “Black people should marry their own women,” Ali declaimed. “Bluebirds with bluebirds, red birds with red birds, pigeons with pigeons, eagles with eagles. God didn’t make no mistake!”

  2. I have prostate cancer. I am an atheist, my oncologist is religious. Does he have the right to stop providing his services to me? He is opposed to Oregon’s Death with Dignity law, approved by 60% of the voters.

    1. Anon – you are more likely to die from old age than the prostate cancer. I really don’t think you have to worry about your doctor. Besides, if you turn sour, go to Hospice, they have this really nice pink medicine that helps you on your way. 🙂

      1. @Paul Schulte, you are very wrong on the facts. This is a vicious prostate cancer, I was told ‘dead in 2 years’ without treatment. Maybe you didn’t know, but in order for my oncologist to send me to hospice, he has to certify to Medicare that I have 6 months or less to live. That is the same certification that is required by the ODWD law.

        That pink medicine, it’s morphine, right? “The old man’s friend.” So where does pain relief with morphine end and forgetting to breathe with morphine start? Your so-called morality is full of holes, and you are willfully blind to that.

        @Olly, I asked him about ODWD and instead of saying just ‘no’ he threw a tantrum and called me immoral. Everyone involved has a right to say ‘no’ to that question. I didn’t know that their main office is inside Providence Medford Hospital, a religious institution with crucifixes on the walls. So they are bound by their landlords’ rules.

        1. Anon – I hate to be mean, but you should have had it checked regularly. Prostate cancer grows slowly, so it has been working for some time in your body. I had prostate cancer and am a survivor so I did the research. What options did they give you?

          1. The ratio of annual diagnoses to annual deaths for the generic cancer stands at about 0.35 (it was 0.63 in 1970). That for prostate cancer is 0.16, so yes, not one of the more virulent cancer sets, but people do die of it.

            1. People who have regular check-ups, digital exams, and PSA testing get snagged, sometimes. It’s not as simple as Paul would like to believe.

            2. The ditz who wrote the article confused cancer subtypes with cancer stages. Just about any type or subtype can enter Stage IV.

              “Stage IV’ (leaving aside leukemias and lympphomas) means that you have distant metasteses. That’s generally a death sentence. IIRC, there are a modest share of colon cancers they can beat back in stage IV (I think it’s a single digit share) and (if I’m not mistaken) thyroid cancer is generally treatable Stage IV. I knew a woman whose husband survived Stage IV testicular cancer. Not sure how common that is. Most cancers, if caught at Stage IV, can be contained for a time but get you sooner or later, usually sooner. Someone diagnosed with stage IV breast cancer has a life expectancy of about 2 years, for example.

              The taxonomy of cancer has grown quite complicated. I had a cousin diagnosed with non-Hodgkins Lymphoma in 1977, a diagnostic category not used anymore. There’s a wiki article which purports to delineate the current taxonomy of lymphoma used. It’s quite rococo. There are four types of thyroid cancer with very different prevalence and outcomes. There are subtypes of subtypes.

              1. https://www.crs-src.ca/sslpage.aspx?pid=1801 (Cancer Research Society)

                “Squamous cell carcinoma: This type of prostate cancer is non glandular and like small cell carcinoma does not lead to an increase in prostate specific antigens (PSA). Squamous cell carcinoma is a very aggressive form of cancer.”

                1) “…does not lead to an increase in prostate specific antigens (PSA)” and

                2) “…is a very aggressive form of cancer.”

                1. “TCGA study identifies seven distinct subytypes of prostate cancer”


                  2015: “seven distinct [SUBTYPES] of prostate cancer”

                  Another aggressive subtype from the earlier linked article:

                  “Small cell carcinoma: …It is a very aggressive form of prostate cancer that does not lead to a change in prostate specific antigen (PSA). It thus can be more difficult to detect than adenocarcinoma. The small cell carcinoma has usually reached an advanced form upon detection.”

                  And again: The small cell carcinoma has usually reached an advanced form upon detection.

                  1. So while the Newsweek article could have been improved, the author was writing about the aggressive subtype of prostate cancer — not about staging — and wrote: “A new study suggests the most aggressive form of the disease is on the rise.”

                    1. Anyway, this is what men need to know:

                      There are aggressive forms (or sub-types) of prostate cancer — namely, the following:

                      “Small cell carcinoma: This type of cancer is made of small round cells. It is a very aggressive form of prostate cancer that does not lead to a change in prostate specific antigen (PSA). It thus can be more difficult to detect than adenocarcinoma. The small cell carcinoma has usually reached an advanced form upon detection.

                      “Squamous cell carcinoma: This type of prostate cancer is non glandular and like small cell carcinoma does not lead to an increase in prostate specific antigens (PSA). Squamous cell carcinoma is a very aggressive form of cancer.”

                      And some “experts” believe that the more aggressive forms (or one of them, at least) may be on the rise.

          2. Paul C Schulte wrote: “Prostate cancer grows slowly, so it has been working for some time in your body. I had prostate cancer and am a survivor so I did the research. ”

            There are aggressive forms or sub-types:


            “Small cell carcinoma: This type of cancer is made of small round cells. It is a very aggressive form of prostate cancer that does not lead to a change in prostate specific antigen (PSA). It thus can be more difficult to detect than adenocarcinoma. The small cell carcinoma has usually reached an advanced form upon detection.

            “Squamous cell carcinoma: This type of prostate cancer is non glandular and like small cell carcinoma does not lead to an increase in prostate specific antigens (PSA). Squamous cell carcinoma is a very aggressive form of cancer.”

            1. anonymous – the one question that has not been answered is what were the options that the oncologist offered other than two years and death.

              1. That’s between you (Paul) and “Anon.”

                My comments only related to the following — to your comment upthread, somewhere, and quoted here:

                You (PCS/Paul) wrote: “I hate to be mean, but you should have had it checked regularly. Prostate cancer grows slowly, so it has been working for some time in your body. I had prostate cancer and am a survivor so I did the research.”

                There are aggressive forms of prostate cancer that aren’t easily “caught” and progress rapidly.

          3. Paul, you deserve to get a cancer you’re not checking for. What would your like? Kidney cancer? Aplastic thyroid cancer? How about pancreatic cancer? If you oppose same sex marriage, you deserve to face it alone because that’s what you demanded of gay people with cancer.

            1. Radio Free Rome – I had two gay brothers (now dead) and several gay friends. My oldest and dearest friend is a lesbian who I have known since the mid-1960s. Just talked to her the other day and we are going to try to get together for lunch soon. Drove to San Diego just so I could attend her wedding. I would not have done that for anyone else but family.

        2. @Olly, I asked him about ODWD and instead of saying just ‘no’ he threw a tantrum and called me immoral.

          Let go of my leg.

        3. @Olly, I asked him about ODWD and instead of saying just ‘no’ he threw a tantrum and called me immoral. Everyone involved has a right to say ‘no’ to that question.

          Color me skeptical, but it is unreasonable to believe an Oncologist would throw a tantrum or call a patient immoral. What’s going on in Oregon medical licensing that binds MD’s to landlord rule’s and not the Hippocratic oath?

          If the above is true, then it’s time for a 2nd opinion. And for crying out loud, crucifixes and/or hospitals that are affiliated with faith-based organizations seem to be causing you greater concern than your cancer. I pray you find peace on both regards.

          1. In decades of interacting with doctors, including several years of employment in hospitals, I have absolutely never seen one get emotionally upset over anything but problems in the mechanics of service delivery. They see patients on an assembly line. Ten minutes with this guy, ten minutes with that guy, and are nowadays preoccupied with data entry.

    2. Does he have the right to stop providing his services to me?

      You brought up the religion angle, why? Does he impose a religious test for treatment of your cancer? Does the Oregon law require all licensed doctors provide assisted suicide as part of their services? What services are you seeking?

  3. Ben Borgman is discriminating against customers purely on the basis of religious affiliation and creed. He needs to read Title II of the Civil Rights Act of 1964 unless he only caters to in-state commerce, in which case he needs to read RCW 49.60.030.

    1. Would interstate commerce occur if he purchases supplies or processes credit cards over state lines but only makes sales locally?

      1. Are you asking him about current usage, or asking him about historical usage, or asking him for an opinion about the nature of the transaction?

        IMO, the transaction between a coffee shop owner and his customers is local commerce unless the coffee shop is located in a hotel or transit hub. That between the coffee shop and his suppliers may be local or inter-state/foreign depending on where the vendor is located and what he shipped. That between the customer and the finance company and between the vendor and the finance company is interstate. The regulatory reach of the central government properly concerns only select transactions there (that between customer and finance co, between vendor and finance company, and between vendor and out-of-state supplier).

        That is a statement of what should be, not what the law effectively is.

  4. I went into a Catholic Church on Sunday for Mass. No it was not a mass shooting. When the priest said all kneel down and pray they all did except me. I stood, put my hand over my heart and sang the national anthem.
    Sometimes things are out of sync. The football players do not know how to show respect during a respected time at a so called respectable event. So they need to be boycotted. Do not go to a game if the dumb football players do not knell and pray at Mass or if they kneel and show snot at the national anthem. We don’t need no football players round here.

  5. In a free society, any enterprise which is not monopolistic common carrier should have the right to set its custom wherever it cares to, with the exception of some licensed occupations and a very small number of food-and-lodging establishments in remote areas. If you’re not practicing medicine and you’re not in Eastern Oregon, who you serve should be up to you.

    In our own time, progressives are under the illusion that they’re better people than everyone else. As better people, they fancy that their brand of discrimination is better than anyone else’s. As human beings, progressives tend to fall into two categories: jack-wagons and the congenial-but-obtuse. Both should be put firmly in their place.

  6. Good on the owner. The right wing religious wackos deny people everyday of their rights and try to institute a faux “christian” sharia on the US. They are working hard to deny a woman the right to her body and her medical decisions. Screw ’em. I’ve done similar at my house when the wackos come knocking and did so when I had to live in an apt. for awhile. A different situation, but I sent them packing in both instances and in the apt. complex management kicked them and their pamphlets out. Those wackos can believe what they want, they don’t get to impose on me with their idiot, right wing, troglodyte beliefs. Religious wackos want to deny gay people etc. of their rights, tit for tat.

    1. Good on the owner.

      So you’d be of the same mind had the tables been turned; A Christian shop owner denies service to a group of gay/transgender people simply because they are wackos, idiots, left-wing troglodytes, you know, tit for tat.

      1. The poster is vicious and obtuse. It wouldn’t occur to him that excellent persons such as himself should be bound by principles applicable to the Benighted.

  7. Politics is infiltrating everything in our culture. It’s horribly unhealthy. My son got married last Saturday. It was a beautiful, fun day. At the reception, w/ adult beverages being consumed, someone @ our table started injecting politics. I just said this is the couple’s wedding day, go outside w/ the smokers and talk politics, but leave it out there. He was pissed, everyone else was happy. These political trolls need to be confronted, because the majority of people hate it!

    1. If you’d look at our Facebook feed, you’d have to conclude that about 90% of the instances of compulsive injection of political discussion are the work of gliberals and leftoids. We have a raft of Republican friends. Only one says much of anything at all on these subjects. The rest post pictures of their grandchildren.

      1. Step, Bingo! You know the politics being spewed by this wedding troll. And I also know that many of those who were pleased w/ what I said were also liberals, but they understand manners and the social contract, the latter about to become extinct.

  8. No difference between today’s ‘Christians’ refusing to serve LGBTQ (or any other minority they find distasteful) and the segregated South refusing to serve blacks at restaurants and other points of service. But when you say it’s a religious right to not serve those who are deemed unholy (shhhh, because they are white Christians) then it’s justified. Pathetic. It’s pure, unadulterated discrimination with a religious twist. SAD!

    1. It wouldn’t be except that the legal profession subscribes to it, especially the law professoriate and the judiciary. Ordinary people are much less unpleasant than lawyers, faculty members, HR twits, and school administrators.

  9. It is the shop owner’s business. He assumed the financial risk of operating it. He should have the absolute freedom to serve or to deny service to anybody for any reason. If he does not like someone’s dollars because they have different opinions than he has, he is letting his hatred and bigotry undermine running his venture optimally. That ought to be his right. He has a First Amendment right to freely associate with and assemble with anybody he chooses. That’s why the public accommodations part of the ’64 Civil Rights Act was unconstitutional. Goldwater was right then and Rand Paul is right about it today.

    From a practical perspective, we have a highly developed, mature economy. There are over 600,000 restaurants in America. I don’t know if that includes gas stations, most of which sell hot food and coffee to go. Or the mid to high end groceries that often serve hot food. Etc. All told, there are probably over 1,000,000 public establishments that serve coffee. The overwhelming majority of them are run by rational people who only care that a customer is willing and able to pay for the service provided. They don’t care about the customer’s beliefs or what is going on in the customer’s mind.

    I hope Borgman’s business fails. He’s a disgusting, putrid, hateful bigot. But whether his business is successful or not, he should get to decide for himself who he serves or denies service to. For any reason.

    1. Scott, the system of statutory segregation known as Jim Crow unfairly restrained trade and commerce conducted by both Whites and Blacks throughout The South. Black businesses were prevented by law from serving White customers. White businesses were prevented by law from serving Black customers.

      Congress has the enumerated power backed up by the necessary and proper clause as well as the supremacy clause to regulate commerce among the states and to coin money. Meanwhile, The Fourteenth Amendment guarantees equal protection under the law as well as preventing states from abridging the privileges and immunities of citizens of the United States.

      Goldwater was wrong in ’64. And Sen. Paul is wrong today.

      1. I think the case that initially litigated the issue, Ollie’s Barbecue, resulted in a poor decision. Neither Ollie’s, Borgman or Phillip’s enterprises crossed state lines, controlled interstate commerce, was a chain or was publically owned. They were all relatively insignificant family-owned enterprises.

        Phillips, who I understand liked his clients, was being told to perform a positive artistic act where that artistic statement would violate his beliefs. He, under no circumstances, should have been forced to violate his core beliefs. Borgman and Ollie both were morally wrong to deny the usual service to their clients (anti-abortion and black respectively), but I don’t think either of those instances required government intervention as much as I dislike such attitudes.

        When government involves itself too much it creates a backlash and all sorts of unintended consequences it can’t possibly know in advance. Humans are too complex. Those unintended consequences frequently spill over into society and create even worse and more complex problems.

        1. OT a bit – Ollie’s vinegar based BBQ sauce is the best! Bought some for my bro who is a BBQ fanatic while driving through Alabama some years ago. I’d never heard of it — just knew my brother prefers vinegar/mustard-based sauces which are impossible to get North of the Mason-Dixon. It was only after we went online to see about ordering it that we learned about the history of the restaurant.

      2. No, Goldwater was right. The judiciary elected to pretend otherwise. Liberals lie. All the time and about everything.

        The implied powers clause makes no sense except as a delegation to undertake acts which are conduits to the exercise of enumerated powers, e.g. purchasing property, constructing buildings, or hiring civil servants.

        See the work of Richard Epstein and Gottfried Dietze. There was a well-established understanding of what constituted ‘inter-state commerce’ and ‘foreign commerce’ that has over 80 years been wrecked by nonsensical court decisions (which had Mr. “Justice” Breyer arguing that a drug deal outside a school constituted ‘inter-state commerce’).

        If we were honest and prudent, we’d limit federal regulation of trade-and-service provision to conveyances, passengers, and merchandise crossing frontiers; to food-and-lodging establishments in transit stations, along U.S. Routes, along long-haul Interstates, and proximate to Interstate exits; to inns generally (exempting b-n-b’s), to service contracts between parties domiciled in different jurisdictions, and to transfers of funds where the endpoints are in different jurisdictions. Federal regulation of labor relations would be limited to the rubrics of interstate and international recruitment of labor and to labor standards in enterprises domiciled in multiple states. Federal regulation of health and safety would be limited to shipping and transportation between jurisdiction, merchandise shipped across frontiers, waste sent into inter-state air and water currents, peculiarly abiding waste problems, off-shore enterprises, and the workplaces of enterprises domiciled in multiple jurisdictions.

        1. SOT, do you favor eliminating the Small Business Administration? Guaranteed low-interest loans for small businesses? Should businesses get federal or state largess [taxpayer funding] without having their trade and commerce regulated by any governmental body?

          1. There is no reason whatsoever to have the Small Business Administration. It’s just another immortal public agency, there because it provides patronage to an attentive clientele, there because Congress is populated with economically illiterate lawyers, there because the Chamber of Commerce wants it and the Republican caucus does what Donohue tells them to do.

            Only a small fraction of the business banking done in this country is greased by the SBA, btw. No clue why you fancy every small business in the country should face compliance costs because some lawyer or insurance agent down the street took out an SBA loan.

            1. Small bussiness owners are NOT strong supporters of the SBA or government largess.

              They do not want “help” from government. They do not need “help”,. They want and need government to get out of their way.

    2. I see what you’re saying, and I have struggled with how to define a business owner’s rights.

      But I remember when I was little, and a gas station owner refused to let a migrant family use the bathroom. Said they would steal the toilet paper and make it dirty. Maybe stealing supplies is a common issue for lodging and gas station. They had kids with them, and anyone with kids knows the urgency when they have to go potty.

      My dad had a talk with him, and he let them use the bathroom.

      I support strong individual rights. Does an individual have the right to use a public bathroom? I think that they do. Although I obviously disagreed with that gas station owner long ago, I would be worried about letting a homeless person use the public bathroom in the fictional gas station in this scenario. They shoot up in there and leave dirty needles and feces on the walls. (They do. They really do. CA is having a Medieval level of plagues, like all the Hep A deaths, due to poor homeless hygiene and drug paraphernalia.) But if it’s a public bathroom, it’s open to the public.

      How do we reconcile the rights of the customer with the traditional right reserved to refuse service to anyone?

      1. Karen – management usually has to be able to articulate a reason for the refusal that would satisfy the courts. Being drunk, or too drunk is always a good one. Starting a fight would be another. However, being Christian is not going to satisfy the courts, either state or federal.

        1. Agreed. A justified example I can think of would be all of those awful videos of customers behaving badly in stores, abusing staff, knocking over supplies. Or if the owner in the above video had instead been a patron sexually harassing other customers.

  10. Anonymous – maybe this owner modeled himself after the “Soup Nazi” in Seinfeld. Soup for you, soup for you, no soup for you! Whatever, he is going to need a new business model to survive.

    1. I loved the Soup Nazi character. Very creative. I didn’t think it was possible to create a “Nazi” anything that I would enjoy, but they did. Comedic genius.

      Of course, Seinfeld was not very PC. I remember he did a skit on being gay. He said that all of his gay friends were extraordinarily neat. So he thought that society should change the hand gesture for being gay from a limp wrist to miming vacuuming.

      It’s a fine line between being offensive and genuinely having a fond laugh at our idiosyncrasies. Not everyone would agree, but I found Seinfeld’s irreverent humor refreshing without being mean spirited.

      Do you remember when George Castanza could not time his tip jar donations right? Every time he would drop money in, the owner would turn away at that exact moment, so it always looked like he stiffed the staff. Out of frustration he tried to fish out his tip for a do-over and of course that’s when the owner turned around.

      All the little frustrations of life showed up. What we need now, in today’s angst riddled society, is a really good comedian.

  11. The coffee shop owner is his own group’s worst enemy. Just like Trump does by inflaming his critics so the focus will be on them and not him, now the homophobes and other bigots can point to this as an example of the ‘alternative lifestyle’. The Christians now get to turn the other cheek, take one for the team, and come off looking holier than this unbalanced _______-fill in the blank.

    The coffee shop owner’s behavior will not only cost him customers from the Christian side but from the vast majority of level headed alternative lifestylers. Who would want to be in a place owned by a fanatic? This is where some of the wagons get circled.

  12. No government can compel the celebration of expressive speech and expressive conduct. Public accommodation laws can only compel the toleration of expressive speech and expressive conduct. Discrimination against individuals or groups based on race, sex, sexual orientation, religion and the like violates the implicit obligation to tolerate one’s fellow human beings. But the legal remedy for such intolerance cannot compel anyone’s celebration of individuals or groups based on race, sex, sexual orientation, religion or the like. Celebration must be voluntary. Toleration, and only toleration, can be compelled through public accommodation laws.

    1. t. Discrimination against individuals or groups based on race, sex, sexual orientation, religion and the like violates the implicit obligation to tolerate one’s fellow human beings.

      An implicit obligation unrecognized in law prior to about 1946.

        1. You have an impoverished imagination when you’re not being dishonest. People are tolerant or intolerant of a whole raft of things, as this example shows. There are no ‘traditional forms’ of intolerance, merely different tastes of different degrees of prevalence enforced with different degrees of force. In a free society, we leave free men to transact business according to their lights, not Diane’s lights.

          1. In a free society, merchants are not free to nullify the value of money coined by Congress, minted or printed by The Treasury and paid as wages, tips and salaries to Blacks, women, Jews and any other citizens or persons against whom those merchants would discriminate–according to their lights.

            1. Diane, if you fancy that refusing to conduct business with someone ‘nullifies’ the value of coinage, I’m going to suggest it’s time for your dementia workup.

            2. “In a free society, merchants are not free to nullify the value of money coined by Congress, minted or printed by The Treasury and paid as wages, tips and salaries to Blacks, women, Jews and any other citizens or persons against whom those merchants would discriminate–according to their lights.”

              That would be pretty much tautologically wrong.

              In a free society, merchants are free to trade or not as they please.
              They are free to accept as payment whatever they please.

              Government money is a convenience, it is not a requirement. And its value is determined in exchange like everything else.

              Merchants in Venezeulla are as we speak “nullifying” the value of Venezeualan currency.
              That is not only reasonable – it is their right.
              No one is obligated to take in exchange something they do not beleive is of sufficient value.

              That is what free society and free exchange means.

              BTW where did you come up with this extremely bizzare concept of money ?

              All money is a matter of belief – repeat that to yourself over and over until it sinks in.
              The real world demonstrates that quite effectively.

              1. Money in the form of wages, tips, salaries and the like is the basis for free labor–meaning not slave labor–here in the United States. In order for merchants to conduct free enterprise, their customers have to be able to engage in free labor paid for with wages, tips, salaries and the like.

                Likewise, the employers of free laborers need to know that the wages, tips and salaries that they pay to their employees will be accepted as legal tender for all debts public and private in the United States–including the goods and services that their employees need in order to continue working for those employers.

                If, as you say, “No one is obligated to take in exchange something they do not beleive is of sufficient value,” because that medium of exchange [money] is in the hands of a Black person, a woman, a Jew or the hands of any other citizen or person whom some merchant also believes to be of “insufficient value,” then the free enterprise of that discriminatory merchant also nullifies the free labor of that Black person, that woman, that Jew, or that other citizen or person against whom that merchant discriminates.

                Free exchange in a free society cannot convert free labor into slave labor.

                1. Labor is something we pay for, not something we pay with.

                  The labor theory of value has a different name – communism and it always ends in blood.

                  the only value of labor is the value it produces. If you labor infinitely and produce no value your labor has no value. If you labor little or nothing but produce great value, your labor is worth what it produces.

                  Money can be shells, gold, bits, paper, but it is not wages, tips, …

                  The only absolute requirement for free exchange is freedom. All the rest is resolved dynamically through exchange and negotiation.

                  An employer is just someone buying labor, an employee is someone selling it.

                  Labor is a very common input to production. It is NOT an absolute requirement.

                  The production of value is the function of the free market, the consumption of value is its goal.
                  Labor and money are incidental – tools or facilitators at best.

                  Legal tender is a pretty much meaningless term. The vast majority of exchange in the world is done without “legal tender”. There is absolutely no requirement for government money.
                  The only value government adds to money is faith that one will be paid. That is meaningless for items of intrinsic value. Regardless, it is not necescary, stocks, other securities cryptocurencies, are exchanged all the time without “legal tender” or government backing.
                  All government backing means is that government will confiscate the wealth of its citizens to pay off the debt.

                  No one is obligated to exchange PERIOD. Why they choose to exchange or not is their own choice.
                  Even Public access laws do not require you to exchange, you are free to decline for myriads of reasons. You are just not free to decline for a few specific reasons.
                  That just means you are encouraging people to lie.

                  Your use of the term “nullify” is nonsensical.

                  First labor has no intrinsic value. Next the value of anything is what a willing buyer and a willing sellor agree to – nothing else. Value is subjective, there is no intrinsic value at all.

                  If I say what you offer me in exchange for what I have produced is insufficient – then it is, PERIOD.
                  But you are free to find someone else who might take it.
                  You are also free to say that what I am selling is not worth what I want paid.
                  Prices are only properly set by the market place. That is extremely critical. It is why central planned economies fail and free markets thrive (regardless of political system)

                  In a free market there can be no slave labor. You are free. Your labor is worth the highest price you can get someone to pay.

                  1. dhlii said, “Government money is a convenience, it is not a requirement. And its value is determined in exchange like everything else.

                    dhlii also said, “All money is a matter of belief – repeat that to yourself over and over until it sinks in.”

                    dhlii further said, “No one is obligated to exchange PERIOD.”

                    Congress has a rational basis for believing that the money it coins will function as an instrument of exchange for the trade in goods and services. Employers who purchase labor services have a rational basis for believing that the money they pay in wages and salaries to their employees in exchange for labor services will function as an instrument of exchange for the trade in goods and services. Employees who sell their labor services have a rational basis for believing that the money they earned from their employers in wages and salaries in exchange for their labor services will function as an instrument of exchange for the trade in goods and services.

                    When merchants discriminate in favor of customers from one race, one sex, one religion or one national origin and discriminate against customers from other races, the other sex, other religions or other national origins, THERE IS NO EXCHANGE IN GOODS NOR SERVICES between those discriminatory merchants and those customers against whom they discriminate; there is ONLY EXCHANGE IN GOODS AND SERVICES between those discriminatory merchants and those of their customers in favor of whom they discriminate.

                    Given sufficient numbers of discriminatory merchants preferentially restraining the trade [exchange] in goods and services located across a significant geographic area comprising many states, the aggregate and cumulative effects on interstate commerce would be so adverse as systematically to undermine the RATIONAL BELIEFS of both employers and employees, alike, in the very INSTRUMENTALITY of money as a medium of exchange for the trade in goods and services.

                    Since money is also the instrument of exchange for the trade in labor services between employers and employees, therefore, the loss of the employers’ and the employees’ rational beliefs in the instrumentality of money as a medium of exchange for the aggregate and cumulative trade in all goods and services–including, especially, labor services–would further undermine the system of free wage-labor for those citizens and their employers, alike, against whom the merchants would discriminate.

                    If the merchants freely exchange with one group of citizens, then the merchants must freely exchange with the other group of citizens. If the merchants refuse to exchange with any group of citizens, then the merchants must refuse to exchange with all groups of citizens. The only exceptions are for expressive speech, expressive conduct and free exercise of religion; none of which can be compelled by government.

                    1. The three statements you quote are not merely mine. They are basic economics.

                      Your posts almost entirely seem to rest on the presumption that law trumps economics, human behavior, and nature.

                      Well that is sort of true – you beleive that to be the case when laws that you favor are in question.

                      If Public accomdiation laws are valid and moral for all the reasons that you claim – then why wasn’t slavery, or Jim Crow or anti-sodomy or … laws that you do not like ?

                      I do not want to was another 20,000 words explaining to you why even though we can not reach absolute truth – we can reach relative truth and we can determine some base principles that allow us to determine right and wrong, as well as what will and will not work in the real world, so that we have some standard that will allow us to say that – this arrangement of law is wrong and will fail, and that one will probabily succeed.

                      But I can point out AGAIN that you can not appeal to the sanctity of the law, without concurrently blessing every evil thing that has ever been done conforming to law – such as slavery and jim crow.

                      Either you rest your claim on the law – and take the consequences that come with that, or you accept that there are principles that transcend and hopefully inform our law.

                      You have not yet made the claim that majoritarianism is the principle that provides the basis for your law.
                      But when you do, you have the same hypocracy problem there.

                      So to be clear – I am not interested in an argument whose foundation is an appeal to Congress, or an appeal to law, unless you are prepared to accept that everything any government or law has ever stated is inherently moral and correct.

                      What people beleive is quite important. And to some extent government plays a role in backsopping those beleifs. But it has no role in creating those beleifs.

                      We expect government to punish those who initiate violence. That is important. It is very difficult to make a working society, or markets with marauding unpunished murderers, rapists, and theives.

                      Free exchange must be free – absent force. And Government has a role to forestall the use of force in trade.

                      But beyond that we beleive because we have evidence that for the most part that is how things work.

                      You fixate on Money. Well in parts of India and Venezuella they are using bitcoin heavily – because government money has failed. Those people using btc “beleive” in the same way as when you use a dollar bill. If that belief proves false often enough they will cease beliving. But exactly the same thing can happen to the $ and has happened to myriads of other forms of government money.

                      “All money is a matter of belief” – government money MIGHT be more likely to inspire faith, but even that is not certain.

                      No one is obligated to exchange – that should be an obvious tautology – what about that confuses you ?
                      Can I come into your life offer you market price for whatever goods you possess and take them from you ?
                      Is there any reason that we are debating this ?

                      Discrimination MIGHT result in no exchange. Duh!!!
                      There is no right to force and exchange.
                      Sometimes exchange do not happen. Duh!!
                      That is actually a REQUIREMENT. Duh!

                      The price of something is what a WILLING buyer will pay a WILLING sellor.
                      Unless both are free to say no – the price is false, distorted, and the whole market is screwed up.
                      This is why all price controls and all socialism fails.

                      BTW the result is not always no exchange. Sometimes the result is a different price.

                      I work as an embedded software consultant (one of many roles). I have clients. I charge different rates to different clients at different times. My price is a function of the specific client – I discriminate and charge clients I do not want more and those I like working with less – are you saying I can not do that ?

                      I also charge more when I am busy and less when I have no work.
                      I get called by new clients and asked for a fee quote and I factor a number of things in and then blurt out a number. Partly that number is informed by the reasons above. Partly it is just semi-random.

                      Are you saying I can not do that ?

                      I do not happen to discriminate against blacks, or gays, or women, but if I did no one would ever know.
                      Regardless I do discriminate – I make choices. I say no to potential clients or I charge them different rates.

                      That is part of how markets actually work.

                      No discrimination does NOT stop exchange. Do you live in the real world ? Are their black people ?

                      White people traded with black people – even when there were laws against it.
                      Discrimination does two things:
                      It alters the prices to some people,
                      and it creates opportunities for those who do not discriminate.

                      If there are two equal engineers for hire and you and I each need 1 engineer and I will not hire a black one,
                      you are going to be able to hire the black one cheaper.

                      I am going to pay more for less value and you are going to pay less for me.
                      I am not going to remain in business very long.

                      Given sufficient and actually sustainable discrimination – which I think is am impossible given.
                      NOTHING will happen to belief in money. At worst the price of goods and services will be different for different people. but that disparity can not bee too large – or someone can step in easily and profit greatly.

                      No one MUST exchange with another. That is crap.

                      If you go to a grocery store are you forced to buy milk ?
                      Are you required to buy a specific number, and type of car ?

                    2. dhlii, You fetishize discrimination based on race, sex, religion or national origin as a choice that has to be made free from the force of law so that government can secure the rights of individuals who would discriminate based on race, sex, religion or national origin.

                      Can Blacks choose to be White for the sake of free exchange in a society that discriminates against Blacks? Can women choose to be men for the sake of free exchange in a society that discriminates against women? Can Jews choose to be Christians for the sake of free exchange in a society that discriminates against Jews? Can Hmong-Americans choose to be Scottish-Americans for the sake of free exchange in a society that discriminates against Hmong-Americans?

                      Do you really think that being Black, or being a woman, or being a Jew, or being Hmong are so many mere hypothetical conditions on a par with buying or selling labor or merchandise in a free market? If, as you said, the value of money is determined in exchange LIKE EVERYTHING ELSE, do you really expect the government to allow discriminatory merchants to determine the value of human beings in exchange LIKE EVERYTHING ELSE?

                      When and where, exactly, will you stop fetishizing your choice, your freedom, your liberty and your right to discriminate based upon race, sex, religion or national origin for the sake of turning your fellow human beings into so many more mere baubles, trinkets and gew-gaws to be bought and sold in the free markets of free societies?

                    3. Diane you are projecting.

                      I do not make any kind of discrimination special. Any fetishizing is yours.

                      You are asking government to create a right that does not exist and secure it.
                      Our actual rights are rarely in conflict. But our natual rights are always in conflict with concocted ones.

                      I do ask government to protect our right to free association – including our right to NOT associate will those we do not wish to. I do ask government to secure our right to liberty – and NOT force us to labor for those we do not wish to.

                      I do not care if you discriminate against the incompetent, the loud, those who can not write, the handsome, the physically fit.

                      If you discriminate is a way that offends me – my remedies are to excercise my freedoms if I choose,
                      To speak out, to protest, to shun, …

                      Can the stupid choose to the smart ?
                      Can we choose to be beautiful ?

                      You seek to use to the force that is govenrment to do what is impossible – to make us equal.

                      In an infinite number of ways we are not equal. It is outside the power of government to change that.
                      Historically the results of efforts to fixate on equality is bloodshed.

                      There are forms of different treatment that I oppose. I oppose treating someone who is black different from someone who is white. I will not and can not morally use force to impose that on others.
                      But just as you can discriminate against jews, I can discriminate against you for discriminating against jews.

                      You are the one trapped in a had hypothetical. I am looking at the real world and not seeking to use force to impose my will on others, particularly where what I seek is impossible.

                      You are the one treating humans as if these facets matter. When you pass a law that says you must treat blacks some way – you codify in law that blacks are inferior and need the special protection of government.

                      The principles I adhere to, the actual rule of law, would never reference, race, sex, religion, ….
                      because government is required to be blind to those. Because our laws can not be written with reference to race, sex, religion.

                      Each of us is an individual. We are not equal. But we are equally free.

                    4. dhlii said, “If there are two equal engineers for hire and you and I each need 1 engineer and I will not hire a black one, you are going to be able to hire the black one cheaper. I am going to pay more for less value and you are going to pay less for me.”

                      I missed that last bit at first reading. “You are going to pay less for me.” Or “you are going to pay less than me.” Either the preposition ‘for’ is a malaprop. Or dhlii is a Black engineer. Should the latter prove the case, then I’m prepared to apologize for my use of the pronoun ‘you’ in last paragraph of my immediately preceding post. Otherwise no apology will be forthcoming from me.

                    5. Lets not fixate on minor grammatical errors.
                      I said elsewhere I write quickly. I am not publishing this in a magazine or book.

                      “you are going to pay less than me”.

                    6. “Either you rest your claim on the law – and take the consequences that come with that, or you accept that there are principles that transcend and hopefully inform our law.” and “to some extent government plays a role in backsopping those beleifs. But it has no role in creating those beleifs.”

                      Excellent (along with everything else. IMO, basic laws that survive are developed organically over a very long period representing human nature and human interaction. They are not suddenly invented by a bureaucrat or a King if that law is expected to last.

                      Though it appears many do not appreciate this discussion I think this is an excellent discussion. Of course, with reservations, I agree entirely with Dave (Dhlii), but Diane, I have to say that despite my total disagreement with what you believe I admire your unwavering attempts to justify what you believe.

                    7. My problem with Diane is that she is prepared to impose her views by force.

                      That is the absolute core of what we are discussing. When is it moral, even necessary to impose force on others ?

                      I agree with your organic evolution argument – though I would call that a process of discovery rather than one of creation. Like Newton we are seeking to discover the laws of gravity – not create them.

                      We are seeking to discover the law that is necessary to secure our liberty.

                    8. dhlii said, “Diane you are projecting.”

                      dhlii also said, “When you pass a law that says you must treat blacks some way – you codify in law that blacks are inferior and need the special protection of government.”

                      Well . . . It only took one business week to get down to the gist of the matter. Let’s think about this one for a moment.

                      Exactly who thinks that Blacks are inferior and need special protection? Late4Dinner? No! That’s not what I think. It is self-evident, however, that that is what dhlii thinks I think. And that is, in fact, projection and false. You see, I am not the one who puts Blacks, women, Jews or any nationality in the same category of citizens or persons as the disabled who do need special protection under the law. For that would be an obvious falsehood. Don’t get me wrong; there is nothing inferior about the disabled, either.

                      But what is it that dhlii thinks? Apparently, dhlii thinks that the only way to treat Blacks and Whites “equally” is to allow merchants to discriminate against Blacks and in favor of Whites–so long as the law does not force merchants to discriminate in favor of Whites and against Blacks. Thus, in the de facto manner of salutary neglect, Blacks and Whites would be “treated as hypothetically equal” in the colorblind eyes of the law that allows merchants to discriminate against Blacks and in favor Whites. And the same hypothetical equality of “legal treatment” would presumably hold for women, Jews, The Irish and the like.

                      But what, if anything, would those discriminatory merchants be thinking? That Blacks and Whites are equal? I doubt it. That Whites are superior to Blacks? It’s admittedly possible that the discriminatory merchants might think that. That Whites are merely “preferable” to Blacks without any imputation of superiority or inferiority? Well . . . Were it not for the dead weight of history we’re schlepping around with us, that last possibility might be more readily admitted. After all, Blacks are different than Whites. And the racial difference no more requires that one race must be superior to the other than it precludes the possibility of an individual Black person being superior at something to an individual White person at that same thing.

                      And so it comes to pass that, in dhlii’s view, public accommodation laws supposedly fetishize racial, sexual, religious and national differences as though they were imbued with the legally codified status of racial, sexual, religious and national inferiorities–even though those public accommodation laws require only that different races, different sexes, different religions and different nationalities should be treated equally for the sake of conducting commerce, trade and the exchange of goods and services.

                      As curious as that result seems, the greater curiosity is the notion that dhlii has pedaled, here, that public accommodation laws are supposedly a form of thought control that is further thought to be simultaneously impossible and unconscionable because it forces merchants to conceal the motives and intentions behind their discriminatory acts via lying to the government in order to avoid punishment under the law.

                      Who is it now who feels so inferior as to need special protection “from” the government thought police?
                      Not Late4Dinner.

                    9. So I am to blame because of the defects of your solutions ?

                      If you do not think a group needs special protection – then this discussion is over, there is no need for public accommodation laws.

                      If you do not think minorities are inferior – then why are you treating them as if they are fragile and incapable of thriving in the real world ?

                      I do not try to get inside your head. I am dealing with what you have said, and the logical meaning of that.

                      If you are not logical – again the discussion is over. If however you are, then the unavoidable conclusion is that you believe minorities are inferior and need special protection.
                      Disclaim that and you disclaim the need for PA laws concurrently.

                      I am not projecting anything onto you. I am taking what you say to its logical ends.

                      I do not know you. I do not know what you actually do. I do not know anything but what you say.
                      I take that as written and accept that you intent the logical consequences of what you advocate.

                      As to myself, I am not fixated on mythical equality. People are not equal, I do not expect them to be treated equally. It would be nice if our unequal treatment accurately reflected our differences, but we do not live in a world that is perfect. I can live with the fact that sometimes out unequal treatment will not accurately reflect our differences. I can live with the far that humans evolve and learn.

                      When I was in college – we were still arresting people for being homosexual – and most people supported that. Today we are fighting over whether gays people can throw christians our of their coffee shops.

                      The changes in people preceded the changes in law. QED we do not need laws for people to change.

                      I do not make this artificial buyer sellor distinction you make.
                      Are you employed – if so you are a merchant of your labor.

                      We engage in free exchange – the free trade of value for value.
                      Unless both parties are free to decline the exchange for any reason or none at all, then the exchange is not free and the consequence will be the destruction of value – we will be poorer, our standard of living will be lower.

                      We are not equal. We would not need laws to force equal treatment if we were equal.

                      Should football teams be forced to hire parapellegic tight ends ?
                      Should The Philharmonic be require to hire me as first cello ?
                      Should Mensa be required to accept people with an IQ of 80 ?

                      Get a clue – we discriminate all over all the time. Discrimination has another name “choose”.
                      We make good choices and bad ones. The greater proportion of good to bad choices we make the better our life is. Being forced to make choices a specific way makes things worse not better.

                      Leaving people free to make poor choices – benefits those who make good ones.

                      If you are black – do you really want to deal with those who hate you ?
                      Are you after a fake exchange with someone who given a choice would not deal with you ?

                      Isn’t the world better if we actually know who is racist and who is not ? Rather than having them forcibly hide who they are ?

                    10. All laws are forms of control – I would hope that is beyond debate.

                      Public Accomidation laws do not punish acts, but intentions. That is not some secret. It is litterally the law as written.

                      PA laws accept that there is no requirement to engage in trade,
                      That we may make choices about when we do and do not trade.
                      But that we may not refuse to trade for a few specific reasons.
                      That we may not refuse to trade if our intent is to discriminate.

                      I can refuse to sell a cake to a black person – if I am out of cake, or the kind of cake they want, or if they did not wear a shirt or shoes, or if they do not have money or myriads of other reason.
                      But I can not refuse based on their race.

                      If I am free to discriminate for some reasons and not for others.
                      The law is criminalizing what is in my mind, not my actions.

                      That is an impossible task.

                      I do not understand why that is not clear to you. That is not my position or argument.
                      It is an overt aspect of the law. It is not secret. It is not something that legislators hid.
                      The wrote it into the law.
                      It is not that you chose not to exchange that violates the law – but Why you made that choice.

  13. A licensed establishment should be open to all, without regard to race, ethnicity, religious or political views, gender, sexual orientation or disability. The establishment should be required to provide anything they sell in the normal course of business, such as coffee, pastries and so forth. The tricky part is when the owner is asked to create something that offends his or her sincerely held religious beliefs. My view is that the owner should be required to “create” ordinary items on the menu or signboard, such as a ham sandwich, but not unique items requiring artistry or creativity, such as a custom wedding cake or floral arrangement.

    1. Why does an establishment require a license ?

      Most people do not need a license to sell their labor.

      If I am selling my labor, I am allowed to not sell it to gays, or christians, or ….
      There is no difference between selling labor and selling cake or coffee.

      The right answer is that public accomidation laws are unconstitutional violations of our rights.
      There are myriads of portions of the constitution that would support that.

      Discrimination on the basis of sex, race, …. are prohibitions against GOVERNMENT.

      The constitution does not constrain private actors from discriminating.

      If I can discriminate in my home, if I can discriminate in my choice of who to sell my labor to,
      then I can dicriminate in who I sell cake or coffee too.

      If a coffee house or baker is engaged in discrimination you do not like – boycott, protest, pickett.

      That works fine for all of us – gay, straight, male, female, black white, athiest christian.

      The role of government is to protect our rights. That includes our right to make choices – even bad ones.

      1. dhlii, The Fourteenth Amendment says that “. . . no state shall . . . abridge the privileges or immunities of citizens of the United States . . . nor deny to any person . . . the equal protection of the laws.

        Article I, Section 8, Clause 3 gives Congress the enumerated power “to regulate commerce . . . among the several states . . . ” and Article I, Section 8, Clause 5 gives Congress the enumerated power “to coin money . . .”

        If you wish to sell your labor, your services or your goods in a discriminatory manner, you will have to do so through a medium of exchange other than the money coined by Congress. Otherwise Congress can regulate whatever commerce you conduct with money coined by Congress. And Congress can regulate thus and so to protect the privileges and immunities of citizens of the United States, including, especially, any person’s equal protection under the law.

        1. Again, these are fictions and fairly transparent fictions. Everyone understands that it was judges saying ‘I say it’s spinach’.

          1. The US Constitution is not “The Wealth of Nations.” Adam Smith was neither a founding father nor a Framer of the Constitution. The sum total of private property in the United State was acquired through military conquest. We have a merchantilist system. Free enterprise is the penultimate fiction.

              1. History is never irrelevant. The judges weren’t the one’s playing ‘Simon says’ with the US Constitution. SOT and dhlii are the one’s saying Simon says “Congress shall NOT have the power to regulate commerce . . .”

                1. History is never irrelevant.

                  Each of the points you made are irrelevant to the questions at hand. That they are contentions on historical matters does not make them relevant.

                  1. The answer at hand is “Congress shall have the power to regulate commerce . . . among the several states . . .” and that ” . . . no state shall . . . abridge the privileges or immunities of citizens of the United States . . . nor deny to any person . . . the equal protection of the laws . . .” and that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states . . .” and that The Civil Rights Act of 1964 is fully backed by both The Necessary and Proper Clause and The Supremacy Clause, while The Contract Clause prevents States from granting private relief to influential debtors by placing bankruptcy law firmly in the hands of Congress; because the money coined by Congress is legal tender for all debts and obligations in the United States.

                    1. If you quote the FULL text of the things you cite – including things like “the state shall make no law”.

                      You will get a quite different result.

                      I do not think I can find a single place in the constitution or the amendments where a limitiation on individuals is created, or even clause mandating a law restricting individuals.
                      The closest is the 18th amendment – not something you want to be basing a strong constitutional argument on.

                      To the extent that the constitution addresses individuals at all, it specifies what government can NOT do regarding individuals.

                      There is absolutely nowhere in the constitution a requirement that the state or federal govenrment prohibit any individual conduct.

                      McCulloch v. Maryland
                      “We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.”

                      John Marshall on the “necescary and proper” clause.

                      All the supremacy clause says is that law that is otherwise constitutional takes priority over conflicting state law.

                      The supremacy clause does not create any federal powers.

                      You are right that Article I, section 10, clause 1. does as you say. But you have ignored an entire clause.

                      Unless the constitution explicitly state “why” you do not get to pretend your guess as to why constitutes a constraint or expansion of the constitution.

                2. Actually that would be James Madison saying that.

                  In addition you make multiple other mistakes.

                  Even using the more expansive modern definition of commerce, the commerce clause only empowers the federal government to regulate interstate (and foreign) commerce.

                  99.99% of what the federal government regulates today using the commerce clause is not interstate commerce.

                  Wickard V. Filburn and its progeny turned interstate commerce into “anything 10 levels removed” from interstate commerce i.e. everything.
                  That is making things up from thin air.

                  Further the existance of a power – no matter how broad you think it is, does not undermine limitations elsewhere in the constitution.

                  You do not get to say – the constitution grants the federal govenrment the most expansive interpretation I can come up with of a few clauses, and therefore I can ignore every clause in the constitution that either limits that grant, or makes no sense at all unless my expansive understanding is false.

                  The constitution is not a puzzler to see how you can twist it to get the greatest federal power.

                  For th first 150 years of our existance, the federal govenrment only exceeded 5% of GDP during the civil war and WWI – and then only barely.

                  Clearly not only our founders, but the authors of the first 18 amendments were not proponents of big government.

            1. Diane – you either failed American History or had a poor teacher. We bought the Lousiana Purchase, the Gadsen Purchase and paid Mexico for California, Arizona, and New Mexico after they violated the boundaries of Texas (an invasion). I am not a big fan of the Mexican War, but it did give battle experience to men who would later become major commanders in the War of Northern Aggression. We also bought Alaska. The original 13 colonies were gifts from the British crown to either people or charter companies to set up colonies for various purposes. Then they did protect themselves against the oppressive British and their tax system, in which they were not allowed to vote. However, they would have never won without the help of the French.

              1. Paul said, “We bought the Lousiana Purchase, the Gadsen Purchase and paid Mexico for California, Arizona, and New Mexico after they violated the boundaries of Texas (an invasion).”

                Perhaps you’re suggesting that The Louisiana Territory was not conquered by The U. S. Army, nor the residents of said territory either herded onto reservations or driven into Canada.

                P. S. Have you forgot The Alamo already, Paul?

                1. Diane – we got Texas after the Alamo. Geez, where did you learn history. And the western plains were a bunch of tribes fighting amongst themselves. Yes, the U.S. Army got involved from time to time, mostly to protect settlers.

                  1. Paul, I know The Alamo preceded The Mexican American War. Do you know why Mexico tried to reclaim Texas? And, in any case, how is it that The Mexican American War was not a military conquest of Texas? Because The Mexicans crossed The Brazos? How did we get our hands on the part between The Brazos and The Rio Grande?

                    1. Diane – when Santa Ana lost to the Texicans he agreed to a southern border at the Rio Grande. However, the ever-changing Mexican Congress could only agree on the another river which is further north. Neither accepted the boundary of the other. Mexican troops crossed the Rio Grande and fired on Gen. Taylor and his troops who were south of the accepted Mexican border, but north of the Rio Grande. Texas had been accepted as a state and we were just protecting our southern border when we were attacked. After two pitched battles, which we won, the US declared war on Mexico. West Point had already been created as an officer’s candidate school and most of the junior officers who will go to Mexico will be graduates. They are also a Who’s Who of the War of Northern Aggression.

                  2. Paul, if The US Army protecting settlers against Native Americans is not a military conquest of The Louisiana Territory, then how is it that the illegal immigration from Mexico is an invasion? Because The Mexican Army has not yet protected “Mexican settlers” in the United States?

            2. “The US Constitution is not “The Wealth of Nations.” ”

              …And according to what you write the US Constitution doesn’t exist. It appears you base the US Constitution on your whims and then conflate the different points made in such a way that it appears the US Constitution is secondary to the way your mind thinks. That is not an insult, rather an observation. Some of the things you desire are very good, but the US Constitution isn’t there to advance your agenda. That advancement of an agenda is left to the amendment process.

              1. Allan said “…And according to what you write the US Constitution doesn’t exist.”

                I have cited the text of the Constitution. Those citations presuppose the existence of The Constitution. If you do not approve of the enumerated powers of Congress, nor the necessary and proper clause, nor the supremacy clause, nor The Civil Rights Act, nor SCOTUS decisions on The Civil Rights Act, then it is you who base your reading of The Constitution upon whimsy conflated with desire to advance your agenda as though The Constitution might as well go ahead on and cease to exist.

                1. “I have cited the text of the Constitution.”

                  The text is not the problem. It is your faulty interpretation and your conflation of various ideas that do not belong together.

                  You look at the Constitution (admittedly with warts) as if it represents toilet paper that can be changed at a moments notice. Your argument that I wish to advance an agenda by misusing the Constitution is totally foolish for I believe in the Constitution and the amendment process, something you seem to have only a vague understanding of.

                  You don’t recognize the Constitution as limiting the rights of the federal government. You don’t understand history. You do understand and ascribe to a collectivist system, but will cry bloody murder if that collectivist system negatively affects your well being.

                2. I have rarely read such a bizzare understanding of the constitution.
                  You are not going to get Ginsberg or Sotomayor, or … to bite.

                  The necescary and proper clause has always – leke for 200+ years, been understood ONLY to justify those things that are incidental to the enumerated powers.

                  i.e. if the government is empowered to mint coins, it is empowered to buy gold.

                  I have no problem with the enumerated powers of the federal govenrment.
                  I have a problem with those pretending they are much more than they are.

                  As a good starting point if you think some clause gives the government unlimited power – you are wrong.
                  Because if true – the rest of the constitution would be unnecescary.

                  You should always read the constitution with the understanding that it was written by the people who wrote the declaration of independence. Who went to war because of anger at a far less burdensome government than we have today.
                  That it was written by people who said “give me liberty or give me death”.

                    1. That is not the question.

                      The question is HOW they decide.

                      If they decide by any method that applied to the same sources, results in a different answer one day than the next – then we do not have the rule of law, we have the rule of man, and we have no constitution.

                      I know to those on the left used to this living constitution bunk this sounds disturbing.
                      But the living constitution meme is the aberrant one.
                      The courts have rules for statutory interpretation – which are little if any different from those of constitutional interpretation.
                      These rules are for the most part a sort of confluence between the rules of logic and of grammar or text analysis. Because that is what the practice of law is.

                      In theory we could replace SCOTUS and judges – atleast with respect to legal analysis with very powerful computers executing rigid algorithms.

                      Or atleast that should be our goal. Until we change the law – not the court or judges, the law should have one meaning. Anything else will result in lawlessness.
                      Which is a great deal of the problem we have today.

                      This is not to say the law is unchangeable. We have legislatures to change laws,
                      and an amendment process to change the constitution.

                      There could be a dozen different methods of constitutional or statutory intepretation that are algoritmic, picking between those is an entirely different problem.

                      But if your means of establishing the meaning of the constitution is not essentially algorithmic – atleast designed to always produce the same results from the same inputs, then it is fatally flawed.

                      When a computer gets the same input and produces different outputs – it is broken.

                      It is far better to reproducably get an outcome we do not like – but can change by changing the input, than it is to jigger with the process to get the output we want without changing the law or constitution.

                      BTW this is not the only place this type of discussion occurs.
                      John B. Taylor has been rigorously advocating for the same thing with regard to the federal reserve.
                      Litterally setting the interest rate by algorithm.

                      We very nearly did that from approx 1980 through 1998. Then in 1998 “the Maestro” Greenspan who should have known better started to beleive he knew better and created the housing bubble that resulted in the financial crisis and the great recession.

                      There is nothing wrong with changing the rule, the algorithm, the law or the constitution, when we find that necescary. But that should be a difficult well thought out process, done rarely, and with great care.
                      It should not be the whim of the day of 5 of 9 supreme court justices.

                      The rule of law does not take control from mankind. It takes control from men.

                      This is also why we separate judging from law making, judges decide winners and losers based purely on the law. Legislators decide the law without reference to the specific winners and losers.

            3. So your argument is that the US is the embodiement of a failed system ?

              I do not care whether you make an argument based on Adam Smith or the constitution, or Das Capital.

              I care whether your argument conforms to reality, and facts, is logically correct and well reasoned.

              I take Smith and the founders seriously – but not biblically.

              We are bound, by the constitution as written and subsequently amended.
              If it is wrong, we can further amend it.
              But if we are distorting it beyond what those who ratified it understood it to mean, then we are lawless.

              The constitution prohibits government from interfering with contracts.

              That is pretty much the end of economic regulation.
              If the people subsequently felt that was wrong – they should have amended the constitution.

              Much of the property of the “united States” was purchased – the lousiana purchase, the seward purchase coming immediately to mind.

              But it would not matter if it was acquired by human sacrifice.

              events hundreds of years old are rarely constraining regarding the present or future.

              We can not right all past wrongs back to cain killing able.
              The existance of past wrongs does nto permanently obligate us to future stupidity.

              We do not and have never had a pure Laissez-faire economic system. Just as we have never seen pure socialism or pure marxism.
              We do howerever know – atleast inside some scope, that statist systems of all kinds perform worse as they grow larger, and less statist and more economically free systems raise standards of living as government shrinks.
              We know this not merely from the work of free market advocates, but from solid work from economists, and government institutions the world over.

              Nearly every country in the world has does a statistical analysis of its own grown and government size to determine the optimum government size. These always result in an optimum matching the smallest government for which that state has good data.

              IMF, World Bank have done similar studies over all OECD countries and over the world.
              Their results – for avery 10% of GDP a government spends the rate of improvement of standard of living decreases 1%. Using data from 1900 through the present the optimal size of government is somewhere below 20% of GDP – that is the smallest government in a developed nation.
              We have an unexplored hole from 20% to the 1-2% of third world failed states.
              Adding in 19th century data the likely optimum is somewhere closer to 3-5% of GDP for total government.

              I am not interested in debating whether a pure free market is some impossible fiction.

              We know beyond any doubt the direction we should be traveling from here and it is agressively smaller.

              I will agree to continue to shrink government until shiring government does not continue to increase standard of living.

              But we are discussing Public accomidation laws.
              The fact is they are logically stupid. Unless someone choses to stupidly concurrently excercise their free speach rights they are entirely unenforceable.
              The entire concept that I can do or not do something legally – unless I do it for the wrong reasons, is just idiocy. Even Christ is not so stupid as to judge us by our motives.

              And act is legal, or it is not without regards to the intentions or motives of the actor.

                1. Criminal law is the near exclusive domain of the states.
                  The constitution does NOT create any federal general police power.
                  There is no language in the constitution to grant a general police power to the federal government.
                  You can find supreme court decisions finding various laws unconstitutional through the present based ont he absence of a general police power.

                  Criminal law falls almost exclusively to the states – generally through the 10th amendment.

              1. mespo – Grapes of Wrath should be the great American novel. Moby Dick is depressing, Hemingway’s stuff is suicidal.

              2. Mespo, the ultimate fiction is that The Almighty Lord God, Yahweh or The Highway, set-aside The United States of America (ab ovo) for The Manifest Destiny of White Christian Men and their burdens.

                1. “Mespo, the ultimate fiction is that The Almighty Lord God, Yahweh or The Highway, set-aside The United States of America (ab ovo) for The Manifest Destiny of White Christian Men and their burdens.”

                  Nope, they either took it by force – just as those they took it from had done before them,
                  or they occupied unoccupied land – as had also been done myriads of times before.

                  “native americans” are atleast the 3rd wave of foreign immigrants to steal north america from its prior owners.

                  Like it out not we are not going to redress all the crimes of history back to Caine and Abel.

        2. The 14th amendment bars STATE discrimination.
          No part of the 14th amendment empowers states or the government to “regulate” private conduct.

          Read up on the actual history of the commerce clause.
          Our founders did NOT intend federal regulation of congress. They gave control of commerce to the federal govenrment to prevent states from regulating commerce.
          Further the contracts clause bars federal and state interference in contracts.
          All commerce is by mutual agreement – contract.

          Regardless, rights do not come from the constitution.

          Further just because the constitution might be wrong, or weak in its protection of our rights, or offer the government power does not make the excercise of that power wise.

          Public accomidation laws are violations of individual rights. They are premised on the fiction that there is some difference between buying and selling – that sellers can be restricted but buyers can not.

          If you buy something – you are also selling something. Free exchange is trade. Both sides are the same.
          We would never say gay people must buy cakes from christian bakers.

          Money is a commodity just like any other. The history of govenrment control of money has been disasterous. It is also fake.

          Are you saying that if I only sell using bitcoin I am free to discriminate ?
          What about credit and debit cards – arguably these do not use government money.

          Further, if congress has the power to regulate commerce – because it coins money, don’t bakers have the power to regulate commerce because they bake cakes ?

          You seem completely unable to grasp that commerce is TRADE, value for value. It is irrelevant with respect to government or third parties what is on one side or the other of the exchange.
          Each party to an exchange is free to axchange or not as the please constrained only as follows:

          you may not initiate force of fraud – criminal law.
          you must honor your agreements – contract law.
          you must make whole those you actually harm – torts.

          There are no other justifications for the use of force.
          The use of force without justification is criminal, and immoral.
          It is wrong, whether you do it as an individual, group, through govenrment.
          What is wrong for a person to do is wrong for a group in any arrangement.

          1. dhlii, the sum total of your argument thus far can be summarized as follows:

            Wherever the Constitution states “Congress shall have the power . . . ” the original intent of the framers shall be construed as nullifying the enumerated powers of Congress.

            Thus, where the Constitution grants to Congress the enumerated power to regulate commerce, you read an injunction against Congress regulating commerce. And you do so on the theory that the Constitution applies only to the federal government of the United States or to the several states–but supposedly does not apply to the privileges and immunities of citizens of the United States nor to the right of said citizens to equal protection under the law.

            You have an ideology devoid of ideas, dhlii.

            1. As a paying NFL customer I demand part of the show feature players standing for the anthem. Am I entitled to that?

            2. “You have an ideology devoid of ideas, dhlii.”

              That, Diane, seems to be your answer whenever you are stumped. Either that or getting nasty telling people where to go and what to do with themselves.

                1. dhlii – I will admit that I have never heard of the Scottish enlightenment. I never thought they were enlightened. 😉 However, please enlighten me about this.

                    1. It is the name given to a particular period in history and a particular group of scholars in that period that had great historical influence. Like the italian renaissance.

                      Franklin as an example is one of the scholars – but he is not scottish.

                      The scottish enlightenment is notable, not so much for being scottish as for being the birth of classical liberalism.

                      Classical liberalism is the single most influential school of thought affecting the US founders.

            3. I have made several arguments.

              The first is a natural rights, free will argument that is supra constitutional.
              It is rooted in the principles many of our founders beleived and imperfectly incorporated into the constitution.

              In its simplest form that argument is:

              This is stupid. Discrimination just means choice. We can not prohibit people from making bad choices.
              At best we are just using the law to encourage people to lie.

              when we have a choice between making laws – which may not have the desired results and will have unintended consequences, and letting things get worked out without laws, we should lean heavily in favor of not making laws. The results will not be perfect, but ultimately they will be best.

              There are instances in which we do make laws:
              We make laws acts acts involving the initiation of violence.
              We make laws to compel people to keep their promises. (usually we do not need statutory laws for that)
              We make laws to compel people to make whole those they harm. (usually we do not need statutory laws for that)

              In all else we should err on the side of leaving things alone.
              But should we feel compelled to make law, then we are MORALLY required to:
              First do no harm
              have a high probability of a significant net positive outcome
              Infringe on rights the least possible.

              You will note I have not talked about the constitution at all yet.

              Public accomidation laws are a very bad idea.
              They solve a problem that will mostly solve itself, mostly do better, and do so without the cost of government.

            4. With respect to the constitution – I do not beleive I have ever used the words “original intent” – atleast not with respect to the framers.

              What I am after is “the rule of law not man”.

              What does that mean ?

              Several things:

              The meaning of the constitution must be as invariant as possible.
              The approach used to understand it must be the same for all, and should to the greatest extent possible result in the same outcome – whether done by justice marshall or Justice Roberts.

              Further whatever your scheme of understanding it, that scheme must allow for the language of a hypothetical constitution to be constructed to reach any outcome – that does not make all outcomes desireable, or consistent with other principles. I am merely saying that the method you use to understand the constitution can not preclude a means of writing it that meant the oposite.
              I am not being clear but the point is the method can not determine the outcome.
              If you had a rule that says “no means no” and one that says “yes means no”, you could never arrive at yes, no matter what the constitution said.

              The above are NOT “originalism, there are “meta rules”. They are rules that say whatever your rules, if they do not conform to these standards they are wrong.

              The “originalist” approach I loosely offer (you can go elsewhere and get greater detail).

              The meaning of the constitution starts with the plain meaning of the text as understood by those who RATIFIED it. NOTE, I do not care what madison thought his words meant. I care what ordinary people at the time the constitution was ratified would have thought it meant. The words of madison or the federalists are evidence, they are not determinative. The intent of the authors is only useful in what it tells us of the understanding of those who ratified it.

              The meaning should always be construed as narrowly as possible,
              Given multiple choices the meaning should always be construed in favor of individual rights and in opposition to government power.

              What I have addressed above is little different from the norms of statutory interpretation for laws other than the constitution as practiced (and often abused) in courtrooms throughout the country.

              The above precludes the so called “living constitution” approach that has been defacto for some time.

              It does so because “the living constitution” meaning depends on people not the law, the constitution changes when supreme court justices change their minds, not when the people change the consitution.

              The “living constitution” quite quickly devolves to meaninglessness. The constitution quickly means something different from day to day. Its evolving nature slowly causes it to become impossible to reach some meanings no matter what the language is.

              Regardless, I am not keen on trying to sus out other peoples “intent”.
              If we can not get inside the head of Stephen Paddock, how do we expect to get into the head of John Adams ?

              I do not like mind reading. It is fraught with failure and oportunity for mischeif.

              We have a mechanism for fixing the constitution when it is wrong. If you follow the rules I have suggested that method will always work. And even if you make a mistake – prohibition, you can fix it.

              1. Dutch Hauling Lines Submediant Minor said:

                “With respect to the constitution – I do not beleive I have ever used the words “original intent” – at least not with respect to the framers.”

                Dutch Hauling Lines Submediant Minor also said:

                “You should always read the constitution with the understanding that it was written by the people who wrote the declaration of independence. Who went to war because of anger at a far less burdensome government than we have today. That it was written by people who said “give me liberty or give me death”.

                Little wonder then that dhlii now says that the statement “Congress shall have the power to regulate commerce . . . ” should be interpreted as stating only that “Neither Congress nor King George III of Great Britain shall have the power to regulate commerce . . .”

                And then there’s the little riff about tautological impossibility or . . . whatever.

                1. My handle is “dhlii” I am not dutch, Those are my initials. My name is David

                  This is the commerce clause.

                  Article I, Section 8, Clause 3
                  The Congress shall have Power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

                  You are correct – I should have said “ratified” by, rather than “written” by.

                  I do not say it should be “interpretted”. I say it should mean exactly what those who ratified it expected that it meant.

                  We deliberately read law narrowly. It is not poetry or fiction, we expect it to be as clear and simple as possible. The aphorism ignorance of the law is no excuse is extremely important. It requires law to not only be simple, but also to be intuitive, and limited. We are expected to know right from wrong.
                  We are not expected to know that 9 drops of rainwater is a puddle, but 10 is an interstate waterway.
                  The commerce clause says “commerce among the states”. In fact it is very specific. It was not written just “commerce” but a list of 3 specific forms of commerce, that clearly means all other forms of commerce are NOT regulated by the federal government.

                  The importance of Madison’s remarks regarding the “dormant commerce clause” are not that was the authors “intent”, but that was how the commerce clause was represented to the people ratifying it.

                  To understand the distinction I am making, the sellor of a car writes a contract for that sale.
                  The norm for understanding that contract is to interpret is as the BUYER would understand it – because the sellor wrote it. The sellor’s intentions are irrelevant. What matters is what the buyer reasonably beleives the contract says. But representations made by the sellor to the buyer to close the sale ARE considered in understanding the contract.

                  So if the Sellor lawyer who drafted the contract says “I intended X when crafting clause B” – that is irrelevant to the judge. While if the buyers lawyers says “My client understands the plain language of Clause B to mean Y” and that meaning is consistent with the common use of the words at the time to contract was executed – that is the meaning the judge should find. If further the buyer can demonstrate “the sellor told me that Clause B means Y” – then “Y” is the meaning of Clause B.

                  First everything should be understood narrowly.
                  Nothing should be presumed to be slight of hand or trick language.
                  To the greatest extent possible the reading should not omit words or clauses.
                  So if it says Congress shall A,B, C that presumes there are things not A,B,C and they are out of scope.
                  It should not be read “Congress shall A” so broad that it covers B, C and infinitely more.
                  It does not matter what madison’s notes for the constitution say.
                  It does not matter what the debate at the constitutional convention was.
                  It matters greatly about the debate AFTER the constitution was written and before it was ratified.
                  It matters greatly greatly how the people who ratified the constitution would have understood it.

                  The above is a specific narrow “originalist” means of determining the meaning of the constitution.
                  It to the largest possible extent avoids “intent” – particularly of the authors. It to the greatest possible extent seeks to avoid trying to “read minds”. To the greatest possible extent it results in the same meaning so long as the same process is followed – regardless of your ideology

                  Much of the above is just the ordinary rules of statutory interpretation in my words.
                  i.e. they are nothing unusual Courts have been doing them with contracts and laws for centuries.

                  The living constitution thesis is the outlier.
                  We as an example always read contracts as they would be at the time they were written, and by the party that did NOT write them, and qualified by the contemporaneous expressions of those contracting.
                  We do not read a 50 year old contract, as it would mean if written today.

                  Though I would still note that the above is secondary to the meta rules:

                  That government must be constrained and defined by a set of rules with a single clear meaning.
                  One that is not changed by the passage of time, and not changed by the ideology of the person applying those rules. That change is accomplished by actually changing the rules. Not by the whim of the person applying the rules.

                  If you do not have a scheme that meets the above meta rules, you have the rule of man, not law, you are lawless, and ultimately your government will die in corruption.

            5. The commerce clause reads:

              “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

              I would suggest reading the facts in Wickard v. Filburn.
              If you can claim that result is consistent with the language of the constitution, you delude far easier than I.

              There is also a great deal of scholarship on what “commerce” meant in 1787, and the meaning was incredibly narrow. It did not even include all economic exchange.

              Regardless, the constitution grants the federal government powers and it also restricts govenrment powers.

              Two clauses that overlap must be read to give meaning to both.

              The contracts clause prohibits all govenrment (including states) from interfering in contracts.

              The contracts clause can not be read to preclude the federal govenrment from having any power over commerce. BUT the commerce clause can not be read to make the contracts clause meaningless.

              The purpose of the commerce clause was to prohibit the states from regulating international and interstate commerce.

              1. dhlii said, “BUT the commerce clause can not be read to make the contracts clause meaningless.”

                From the Wikipedia article on The Contract Clause:

                “The Supreme Court laid out a three-part test for whether a law conforms with the Contract Clause in Energy Reserves Group v. Kansas Power & Light. First, the state regulation must not substantially impair a contractual relationship. Second, the State “must have a significant and legitimate purpose behind the regulation, such as the remedying of a broad and general social or economic problem.” Third, the law must be reasonable and appropriate for its intended purpose. This test is similar to rational basis review.”

                IOW, states cannot impair contractual obligations–meaning, states cannot cancel debts–unless, there’s an economic or social crisis, such as mass discontinuation of electrical service due to a spike in energy prices or mass mortgage foreclosures, for that matter. In the case of emergencies, such as economic depressions, state remedies are supposed to be temporary.

                Notice, there’s nothing there about the commerce clause. And, therefore, nothing about the commerce clause making the contract clause meaningless. The tests apply to state regulations–not federal regulations. The Civil Rights Act is an Act of Congress which is part of the federal government and that Act of Congress makes state public accommodation laws possible.

                That antifederalists often disagree with Acts of Congress will be readily admitted. After all, the antifederalists never wanted The US Constitution to begin with. And, so soon as the federalists offered the states a Bill of Rights, the antifederalists stopped demanding one and started opposing that as well as The Constitution. Fortunately, the antifederalists lost that debate and both The Constitution and The Bill of Rights were ratified by three fourths of the states.

                1. First SCOTUS has spoken on the contracts clause many times.
                  You are merely citing the current decisions.
                  The purpose of the rules of statutory interpretation is to avoid to the greatest intent possible having multiple interpretations over time.

                  Still addressing what you cite

                  “First, the state regulation must not substantially impair a contractual relationship. ”
                  This is close but WRONG, it is a distorted paraphrase of the actual language in the clause.
                  The language of the contracts clause is clearer.
                  You know there is trouble when the court replaces simple clear language with more complex language.

                  The constitution says “No State shall make a law impairing the obligations of contracts”

                  It does not say “impairing contractual relationships”.
                  There is no “substantially”.
                  There is no exception for a significant and legitimate purpose.
                  There is no exception for a reasonable and appropriate for that purpose.

                  As every parent has said to their toddler “No means No”

                  What you can not do, you can not do.

                  And just so I am clear – all free exchange is by contract.
                  A contract is


                  Regardless, event the mangling in Kansas power and light – does not get you what you want.

                  Saying I am obligated to enter into a contract – which is what Public Accomodation laws do would CLEARLY Substantially impair contractual relationships.
                  It would not serve a legitimate purpose – the constitution no where specifies a government power to
                  constrain non-violent choices.
                  Nor can accomplishing an illegitimate purpose be reasonable and appropriate.

                  Those seeking to vastly expand the power of govenrment engage in word games.

                  First the language of the contracts clause was sufficiently clear.
                  The Kansas power test is not congruent with the clear language.

                  Adding exceptions for “legitimate purposes” is incredible weasle words.
                  Everyone thinks their purpose is legitimate.
                  The constitution does nor specify purposes. It enumerates (or constrains) powers.
                  If government does nto have a power – it may not act – whether there is a legitimate purpose or not.

                  If we think government needs more powers we can amend the constitution.

                  What we can not do is stretch the text, to find what is not there.

                  Kansas Power does NOT allow Public accomidation laws.
                  But even if it did, it deliniates a contracts clause that is NOT the one in the constitution.
                  It is therefore wrongly expressed, and clearly so and an example of what is wrong with your approach.
                  It produces results that are variable depending on the beleifs of the person applying them.

                2. IOW – we are not really going to read the contracts clause as written, we are going to dance three layers deep into interpretation such that we can mangle contracts as we please.

                  There is no “Unless” in the contracts clause. That entire portion of your diatribe is moot.

                  All commerce is contract. No matter how broad or narrow the commerce clause is,
                  A commerce clause power is still constrained by the contracts clause.

                  You condemn originalism – and then constantly tell me why the framers did something – as if their intent was important – except when you think it is not. Work out your own hypocracy – you do not get to have it both ways.

                  Congress can not grant to states powers the states do not have. That is just crap.
                  Nor can congress grant to itself powers the federal government does not have.

                  The state can not impair contracts under federal authorization, and the federal govenrment can not meddle in commerce EXCEPT, between nations, between states and with indians.
                  To the extent the civil rights acts does either it is unconstitutional.

                  Frankly the CRA was unnecescary. The federal courts should have struck down jim crow laws
                  using the 14th amendment AND the contracts clause.

                  BTW the contracts clause was used in the early 20th century to bar zoning laws that excluded blacks from specific areas.
                  Get a clue, a narrow reading of the contracts clause is your friend.

                  Private non-violent choices are not the business of govenrment.
                  You can get large portions of what the 14th amendment provides, solely with the contracts clause.
                  Jim Crow violates the contracts clause.

                3. You can not speak universally or cohesively of the anti-federalists.
                  All that they hald in common was opposition to the Constitution as written.

                  Ultimately the antifederalists joined madison and jefferson to become democrats and to oppose hamilton.
                  So you ended up with Madison together with the antifederalists.

                  1. For those of you fortified with infinite patience, you can find the following three statements strewn across this thread in the posts from dhlii:

                    I am with the anti-federalists, the bill of rights was a mistake.
                    Not anti-federalist.
                    You can not speak universally or cohesively of the anti-federalists.

                    Well . . . One supposes that dhlii’s third statement explains the first two.

                    1. I can not agree with one argument some anti-federalists made (and not universally) without being permanently labeled by you as an anti-federalist ?

                      By that standard you are a marxist-leninist – not merely someone who unwittingly is re-arguing the labor theory of value.

                4. Firstly, Diane should take note of the information warning Wikipedia provides at the top of the article she is quoting from: “This article needs attention from an expert in Law. “

                  Sometimes people take a little bit of information from many places and think that putting those pieces together make sense. Frequently, one needs more knowledge to integrate the multiple parts. Diane doesn’t have that knowledge and when she quoted the three-part test she should have recognized that the first part was paraphrased something I congratulate Dhlii for recognizing and explaining. Diane thinks she has the expertise, but is a very low-level legal hack that can read and write, but has difficulty in comprehension.

                  I also commend Dhlii for specifically and clearly pointing out just some of Diane’s hypocrisy and explaining to her “you do not get to have it both ways.”.

                  1. dhlii is my handle – my initials. If you wish my name is Dave.

                    Diane has impressed me in one way, thus far she has not resorted to ad hominem.
                    She is making an argument – even if I think her logic skills are poor and her knowledge weak.

                    I would also note that while this is a legal blog – I am not a lawyer, though half of the people I know are, and I have read Tribes book on Constitutional law, and I regularly function as a constitutional/legal foil for someone who does criminal appellate work,

                    My arguments are not confined to law.

                    I am using general philosophy, legal philosophy, economic philosophy, facts, logic and reason and maybe a bit of epistemology.

                    Some of that is driven by what I am responding to. Diane made this connection between the constitution, law, theory of money and economics all on her own.

                    Theory of money could be a huge topic alone.
                    Though Adam Smith’s “All money is a matter of belief” gets pretty much all of it is a nutshell.

                    Diane can sort of be excused for dancing around a labor theory of value – even Smith danced pretty close to it before stepping back, and Marx went all it.

                  2. The other issue I am having with Diane which I am not articulating well enough is that, you can beleive whatever you want, whether about law, or economics, or …..

                    In the end it has to work.
                    We do not make laws that can be thwarted simply by lying because they do not work, and because we should not want a system where lying is encouraged.

                    I am gathering Diane is older ?
                    I am used to this “all ideas are equal” nonsense from millenials.
                    No All ideas are not equal.

                    The objective is not merely to construct a society that reflects whatever values Diane things are important, but one that works.

                    We will eventually all be perfectly equal – when we are dead.
                    We can achieve near perfect racial, sexual, cultural harmony, in poverty.

                    My utopia does not have racial or sexual or cultural discrimination either.
                    We share the same ends. But means matter.

                    1. “I am gathering Diane is older ?”

                      She sounds like one that is entering her first childhood, but the reality I think is that she is well into her second childhood.:-)

            6. “And you do so on the theory that the Constitution applies only to the federal government of the United States or to the several states”

              That is not my position, that is the position of just about every constitutional lawyer that has ever existed.

              The constitution is the blueprint for government. That is one of the reasons why the bill of rights was a mistake as the anti-federalists noted.
              Rights belong to individuals – not states or governments.
              Governments have powers.

              “–but supposedly does not apply to the privileges and immunities of citizens of the United States nor to the right of said citizens to equal protection under the law.”

              This remark is just utter nonsense.

              Here is the text of the relevant section of the 14th amendment.
              “Section 1.

              All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

              There is absolutely no rational means of construing that to empower government to further restrict individuals. It is absolutely crystal clear a restriction on the law making power of government.

            7. My ideology is the one that produced the constitution in the first place – the classical liberalism of the scottish enlightenment, of John Locke, of Adam Smith, Robert Burns, David Hume, James Mill, James Watt and Benjamin Franklin.

              Are you saying they were devoid of ideas ?

                  1. Actually, you flatly denied that there was an implicit obligation to tolerate one’s fellow human beings. In doing so, you further denied that public accommodation laws that prohibit discrimination based on race, sex, religion, national origin and the like presuppose an obligation to tolerate one’s fellow human beings.

                    It’s a curious thing, but churches are explicitly exempted from both The Americans with Disabilities Act and Title II of The Civil Rights Act; such that, no state-level public accommodation laws can assert jurisdiction over any of the churches in those states.

                    But then you have not [knowingly] addressed toleration in any [intentionally motivated] way at all.

                    1. Your definition of “tolerate” seems to be conform to your ideology.

                      Tolerating others does NOT require you to alter choices that your can make freely.

                      I tolerate your expression of your views and values here. That does nor require me to abide or agree with them.

                      Your definition of tolerate is “agree, or be forced to conform”. That is “intolerance”.

                      I do not grasp the significance of you divergen on ADA and the CRA.
                      Both are unconstitutional to the extent they go beyond government.

                      if “tolerance” requires us to not use force or fraud against others, to keep our agreements, and to make whole those we harm – regardless of their race, sex, creed or anything else, then you can legislate tolerance. If it requires any more – you can not – and that should be obvious.

                      Regardless, if you wish to address tolerance – it is the intolerance of the left, their inability to accept that others are free to disagree with them that is one of the most significant reasons they lost the last election.

                      Identity politics is inherently intolerant. When you call half the country “hateful, hating haters”, you are not going to get their votes. Trump is a creation of the left. He is the inevitable consequence of the left’s identity politics.

                      Your fixations on race, gender, disabilily as requiring some special protection from government are the route to intolerance.

          2. dhlii, Your interpretation of The Contract Clause is sui generis. The Contract Clause prevents States from granting private relief to influential debtors by placing bankruptcy law firmly in the hands of Congress. The Contract Clause also prevents States from coining money; because money coined by Congress is legal tender for all debts and obligations in the United States. It’s a principle of federalism and, therefore, yet one more reason that “Congress shall have the power to regulate commerce . . “

            1. If the contracts clause had been intended for the particular unique purpose you propose – it would have been written differently. We can argue how broad it is, but it is clearly far broader than prohibiting states from granting debt relief. BTW it applies to both states and federal government and even in your narrow interpretation would have prevented everything we did post 2008.

              Article I, section 10, clause 1
              No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

              It does enumerate any federal or state power, it is purely proscriptive.
              I will agree that it does do most of the things you say it does, but your reading completely obliterates “Law impairing the obligation of contracts”

              Further your read of the commerce clause makes the contracts clause unnecescary.

              It is a general principle of statutory interpretation – and that would apply to the constitution, that you should never construe the language of laws to make phrases or clauses ineffectual.

              Esentially that means if you think that one thing is a strict subset (or superset) or the other – then you are wrong.

            2. I would suggest some scholarship regarding the commerce clause.

              During the ratification process the constitution was translated by the govenrment into several languages – german and dutch, because everyone got to vote and many people did not read english.

              The words used in the dutch and german versions were not the word you would understand today as “commerce” – this was because commerce had a much much narrowing meaning in 1787 than today.
              There were german and dutch words equivalent to the modern meaning of commerce, those were not used.

              Regardless, you are arguing this self contradictory nonsense.

              On the one hand you are making this baseless sui generis argument that presumes not that you must read the clause as written in 1787 but as you think the founders intended in 1787,
              and on the other you want commerce to mean what it does in 2017.

              Atleast get your own arguments consistent. Either the 1878 meaning matters, or it does not,
              but picking and chosing is hypocritical.

              13 Feb. 1829
              For a like reason, I made no reference to the “power to regulate commerce among the several States.” I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.
              James Madison

              As noted what really matters is the plain text meaning as understood by those who ratified (not wrote) the constitution.

              But since you are fixated on “original intent” the above is Madison’s “original intent”.

              This is the basis for the understanding of the meaning of the commerce typically known as “the dormant commence clause”.

              Madison granted the power to the federal government to deprive it to the states, not to empower it, with the understanding that the federal government would do nothing.

      2. dhlii – all businesses that collect sales tax are required to get a city and sometimes state business license. They also probably need a health license for the coffee and food they serve in there. Does that help?

        1. You seem to confuse “we order you to do X” with “there is an actual need for X”.

          I am well aware that we have myriads of licensing laws.

          Most of which are logical stupidity and the pretense that a right is a priviledge.

          Even in the event that say sales taxes were otherwise justifiable,
          Anyone engaged in exchange would be obligated to collect them and to pay the collected money to the state. No license is required to do so. Nor does the requirement to do so, create a basis for further regulation.

          Essentially your argument is you are obligated to collect taxes if you sell things.
          Collecting taxes is a priviledge, therefore we can constrain your rights even further because we have converted an obligation into a priviledge.

          1. dhlii – well, if you can convince the tax people of your argument, more power to you. Last person I heard use that argument got 5 years in federal prison. 😉

            1. It is unclear from your response what you are objecting to.

              It is also pretty clear that you are misperceiving what I am saying.

              I am well aware there is a lot of bad law that we unfortunately must obey.
              BTW the Institute for Justice has been extrodinarily successful at striking down licensing laws. I do not think they have lost yet.
              Regardless, the fact that bad law exists does not magically make it expand to whatever scope you wish.

              Our licensing laws are stupid and immoral.
              An expansive interpretation of them is PERSONALLY stupid and immoral.

              1. dhlii – I could not agree more that there is an overuse of the business licensing laws. However, if you are going to sell anything, you are required to pay sales tax, which requires a sales tax license. Now in Arizona they are free, but you want the number on it so you can submit your taxes quarterly.

                1. “However, if you are going to sell anything, you are required to pay sales tax”
                  Lets assume for the moment that sales taxes are justified. That is not specifically an issue for businesses,
                  But there is a separate issue that a tax is not justified just because it exists.
                  The morality and legitimacy of a tax depends on what it is used for.
                  Government may not tax to do things government may not legitimately do.
                  As a business that must collect sales tax, I am going to pay my taxes, and fight that battle elsewhere.

                  But taxes and govenrment are not self justifying.

                  “which requires a sales tax license.” Only because that is convenient for the state.
                  There is absolutely no reason that sales tax licenses are required.

                  The law can trivially say – if you sell something, you must collect sales taxes, and you must remit those taxes to the state.

                  You do not need a license to pay income taxes.

                  “Now in Arizona they are free” not relevant.
                  “but you want the number on it so you can submit your taxes quarterly.” that is for the convenience of the state. And frankly accomplishes very little of that. If I pay my taxes as required, and provide sufficient identifying information, why is this magic number needed ?
                  More specifically why do I need this number ? The state can from my identifying information look up the number for me.

                  I sell things to other people. I have a customer identifier for each one. I also usually have an invoice.
                  I ask customers to provide their invoice and customer number when they pay – they usually don’t.
                  They still paid and still owe me nothing.

                  Only the state gets away with saying you must do things their way.

                  Why ? Because the state is force. Do not do what they ask, remain persistant, and you will litterally have a gun to your head. Usually take alot of persistance and time. But it will happen.
                  “all power proceeds from the barrel of a gun” Mao
                  Do not ever delude yourself otherwise.

                  1. dhlii – city and state sales taxes are collected at the same time and both go to the state, who I hope dole out 100% of the city taxes back to the city. Still, they may be taking a collection fee for all I know. Sadly, we vote these taxes on ourselves for the most part (and in every case, I have voted against them still ending on the losing end).

                    1. Majority consent is necescary but not sufficient for justification.
                      john and peter can not agree to steal from paul.

          2. dhlii, perhaps you’re confusing The Fourteenth Amendment with The Comity Clause in Article IV, Section 2, Clause I:

            The citizens of each State shall be entitled to all the privileges AND immunities of citizens in the several States.

            The Comity Clause prevents one state from discriminating against the citizens of another State. As such, it is the reason that slave owners could keep their slaves as slaves when traveling to, or through, or even while residing for time in states that did not allow slavery. After The American Civil War, The Fourteenth Amendment turned the entitlement around by stating, amongst other things, that . . .

            “No State shall . . . abridge the privileges OR immunities of citizens of the United States . . .

            The distinction goes directly to the issue of state public accommodation laws being subordinate to The Civil Rights Act. You keep on trying to gin up a Constitutional right to discriminate in favor of, or against, persons or groups of people based on race, sex, sexual orientation, religion and the like that is directly contrary to the privileges and immunities of citizens of the United States as well as the principle of equal protection under the law. Neither The Constitution nor The Bill of Rights recognizes any such right to discriminate. Your arguments to the contrary are perverse.

            1. You are all over the place with nonsense.

              The Constitution constrains government, it offers no constraints on private actors, that is not its purpose.
              Please identify where in the constitution or its amendments the power to bar private discrimination is enumerated ?

              I beleive the portion you are struggling to war is
              “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

              Note “No State” and “Make or enforce any law”

              Seems pretty clear to me.

              As to where to find the freedom to discriminate:
              The contracts clause, the first amendment right to free association, and the 9th and 10th amendment
              Discrimination is merely a synonym for “choice” with a negative connotation.
              We discriminate constantly – because we make choices.

              McCulloch v. Maryland
              This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted
              Chief Justice Marshall

              AGAIN The 14th amendment constrains government. PERIOD.

              The civil rights act is an irrelevant tangent.

              Please show me where in the constitution or its amendments government is empowered to bar discrimination outside that of govenrment.

              Even the existing public accommodation laws do NOT prohibit the discrimination that you claim they do.
              They merely prohibit people from admitting to it.
              Laws that encourage people to lie are incredibly stupid.

              I am aware that I am reading the constitution as it is written – rather than as left wingnuts have mutilated it.

              I am very specifically arguing that we should return to the proper and narrow reading, because otherwise we end up with the complex mess we have here.

              We are about to have a big pissing contest over the contest between free exercise of religion and public accommodation laws.
              Any sane person should grasp that absent unbelievably compelling justifications rights should always trump laws – that is pretty much the definition of rights.
              BTW free association includes the right to NOT associate. All rights include the right NOT to.
              Look into first amendment cases on compelled speech.
              So now we have TWO rights in conflict with PA laws.

              A simple principle of logic is that if you allow a contradiction in your premises you can prove anything.
              As I thought I have made clear, I am not trying to argue the broken self contradictory mess that we have made of the constitution and law – because given its numerous contradictions, I can prove anything from it.

              What I am arguing it that all laws barring private discrimination are incredibly stupid.
              I will have no problem proving them unconstitutional – usually several ways, but you will still be able to prove them constitutional. That is the mess we get when we mangle meaning an logic.

              With our law as it is, the gay coffee shop owner is F’d.
              Whether the Cake baker is also F’d will depend on how 5 justices read the constitution and the balancing of rights vs. laws.

              With things as they should be, both are free to do as they please and customers are free to pickett protest, or take their business elsewhere.

              That is by far the best way to deal with the poor choices of businesses.
              It is a solution that is effective, timeless, and does not offend the constitution as written.

              It need not care whether the poor choice is one effecting a protected class or just a popular value.

              1. dhlii, please try to pay close attention.

                Congress has the enumerated power to coin money. States are forbidden to coin money. The money coined by Congress is legal tender for all debts public and private in the United States. Employers pay the money coined by Congress to employees in the form of wages, tips, salaries and the like. Both those wage earners and their employers have every reason to expect that their hard-earned dollars will be accepted as legal tender for goods and services offered in the marketplace. And that, too, is why Congress has the enumerated power to regulate commerce.

                When merchants discriminate against customers based upon such demographic characteristics as race, sex, religion and the like, those merchants nullify the value of the money coined by Congress and paid by employers to employees in the form of wages, tips and salaries. That nullification of the value of money coined by Congress abridges the privileges and immunities of citizens of the United States while at the same time denying the equal protection of the laws to those persons on the basis of such demographic characteristics as race, sex, religion and the like.

                Congress cannot allow merchants to engage in unregulated commerce that nullifies the value of money coined by Congress and paid as wages, tips and salaries to any citizens or persons who cannot be compelled into slavery nor involuntary servitude without having been duly convicted of a crime.

                Do you see the problem, now, dhlii??? If merchants can nullify the value of money paid in wages to Blacks, women, Jews or whosoever else the merchants refuse to do business with, then Blacks, women, Jews and the like would be reduced to the condition of slavery or involuntary servitude without having been duly convicted of a crime.

                Your anti-federalist libertarianism converts freedom into slavery. And that is the utmost unsound basis for the law, dhlii.

                1. Diane – do you know who used to be the fourth richest woman in NY? I will give you a couple of hints, she lived in Harlem and was black. You do not know what you are talking about with dhlii, it makes no sense at all. Money moves in communities at several levels as it did during the Jim Crow era. Whitey didn’t serve blacky at the front door but was happy to serve and take his money at the side door. Businesses still want income and rarely turn it away.

                    1. Diane – just because the SC said that does not mean it was always true. The school for blacks in Phoenix has been turned into a museum so students can see it and former students lead the tours. I have known a couple of the graduates and they all speak highly of the school and found that having to integrate with the white students actually lowered their academics.

                    2. “Paul, separate but equal is Not equal.”

                      We are only entitled to equal protection of the LAW.

                      We are only equal with respect to the state.

                      In all other ways equality is an extremely dangerous fiction.

                      We are not equal.
                      We are not equally intelligent
                      We are not equally attractive
                      We are not equally physically able.
                      We are not equally persuasive.

                      Government can not make us equal.

                      The ONLY equality we are entitled to is that the law – the state will be blind to our differences.
                      We are not entitled to blind our neighbors.

                      You do not have a right to play violin at Carnegie hall.
                      Why ? Because we are NOT equal.

                      When government shifts from Government treating us equally to trying to force each of us to treat each other equally the result it blood.

                      From the French revolution through the present no ideology has murdered more people than substituting equality for freedom.

                  1. Excellent observations.

                    Jim Crow did not work – as you noted, blacks were still served at the back door. Because sellors want to sell.

                    Jim Crow was law – because absent force systemic discrimination is nearly impossible. ‘

                    Think about that again. Jim Crow was LAW. LAW – force was required to get people to systemically behave badly – and even then it did not work.

                2. When merchants discriminate against customers based upon such demographic characteristics as race, sex, religion and the like, those merchants nullify the value of the money coined by Congress

                  Diane, you don’t expect us to read this contrived and silly argument without laughing, do you?

                  1. Employers have every reason to expect that their employees will be able to purchase goods and services in the marketplace with the wages, tips and salaries that employers pay to their employees. Such is the basis for free labor in the United States.

                    If Black, women, or Jewish employees cannot purchase goods or services from merchants who discriminate against them on the basis of race, sex, religion and the like, while White, Men, or Christian employees can purchase those same goods and services from those same merchants who discriminate in favor them on the basis of race, sex, religion and the like, then the discriminatory merchants at issue have rendered the wages, tips and salaries of the favored groups worth more than the wages, tips and salaries of the disfavored groups.

                    Given a sufficient number of such discriminatory merchants the value of the money paid to Black, women, or Jewish employees will be zero, zip, zilch, nil, nada, neechevo, bupkes, SOT. And that would nullify free labor for Blacks, women and Jews in America.

                    Are you still laughing? Because there’s always a history, you know.

                    1. What people such as employers expect – is their problem.

                      Your entire argument here is made up nonsense.

                      You can not convert aspirations and desires into force and commands.

                      The world does not work as you wish, but to the extent it does, it does so freely of its own accord, because most of us desire it, but not because we command it.

                    2. In the real world, things do not actually work that way.
                      In fact things work pretty much the opposite.
                      The race to the bottom you worry about has never happened.
                      In the real world absent force it is a competitive race to the top.

                    3. Do you know what happens when one group refuses to transact business with another group? It opens opportunities for the group being discriminated against. They have a quick start to create their own businesses with customers just waiting to spend their money.

                    4. I’m just happy we as paying NFL customers can demand that the show we buy tickets to see includes NFL players all standing for the anthem before each game.

                    5. Because otherwise they would be nullifying your money and pigs would fly and the world would come to an end.

                3. Please do not give me commands.

                  I am paying attention to what matters.

                  The constitution rarely if ever says anything about “why”.
                  Your claims are just speculation.
                  Granting government a power does not require it to use it.

                  Money is an entirely different area of discussion, which I would be surprised if you are particularly knowledgeable in.
                  Regardless as Adam Smith noted
                  All money is a matter of belief.
                  The details regarding money matter only in that they effect either ones belief in it or its utility.
                  Drug dealers have used bottles of tide laundry detergent as money.
                  With most of the exchanges you make today there are no coins, no paper involved.
                  just the numbers in the ether.

                  Money has utility – it makes the economy work better – like grease and oil for a machine.
                  It is not strictly necessary, though it improves things sufficient that we would create it if it did not exist.

                  Last year the US produced approximately 16T of value. That is our new wealth. We might measure it in dollars, but it constitutes things we value. If the Fed produced 100 times the amount of money – it would not change our standard of living or the amount of wealth we have.

                  Government has very little positive power over the economy. Government creates very little value.
                  Wealth is the value created. Money is merely a utility for exchanging and storing wealth.

                  If you are confused about the distinction between money and wealth, you are incapable of coherent economic thought.

                  The constitution granted congress and to a lessor extent the states the power to create money.
                  Congress like you seem to have the hubris to think that power is exclusive or even necessary.

                  Money is not and never has been the exclusive province of government, or a necessity for government.
                  Nor is the issuance of money a justification for anything else.

                  We already have myriads of forms of money that are not issued by government.
                  Amazon just bought whole foods. What did they use to pay for it ?

                  What constitutes money is determined by the people who use it. Not government.
                  Several modern governments – such as india and venezuela have had large groups of people cease using government money because they lost faith in government money.
                  AGAIN All Money is a matter of belief.

                4. “When merchants discriminate against customers based upon such demographic characteristics as race, sex, religion and the like, those merchants nullify the value of the money coined by Congress and paid by employers to employees in the form of wages, tips and salaries.”

                  Do you think that saying something makes it so ?

                  That is entirely poppycock.

                  There is no right to command an exchange PERIOD. The fundimental problem with public accomidation laws is that they strive to create a partial right to do so.

                  You can not. Markets do not behave as commanded. When governments are stupid enough to try to command them, markets adapt usually in ways that were not intended – aka unintended consequences.

                  Trying to command a market is about as fruitless as trying to dictate the weather.

                  The value of money is NOT set by congress, it is set by people in exchange.

                  Contra your claim congress can not control free exchange. The entire point of free exchange is that it is FREE exchange – we do it voluntarily, THAT is what creates value – not congress.

                  The value of a dollar is set when I decide that I am willing to sell you a hamburger for a dollar.
                  If I refuse that also sets that I do not ‘beleive’ – remember all money is a matter of belief, that my hamburger and your dollar are of the same value. Or they are not to me at that moment.

                  Value is Subjective. AGAIN it is determined by HUMANS in FREE EXCHANGE.

                  It is not the sellor who refuses to sell based on race that “nullifies” the value of money.
                  Determining the value of money to him at any moment is his RIGHT.
                  It is government that distorts the market and the value of money when it tries to command the economy.

                  The RIGHT of market participants to set value – including that of money is immutable.
                  It is irrelevant whether it is included in the bill of rights or not.

                  It is not in the power of government to force the economy to work outside of free exchange.

                  This is at the root of the failure of marxism. If you are curious look up the “economic calculation problem”. This is the reason that socialist systems fail.

                  Let me reiterate a few key points

                  Money is a matter of belief.
                  Value is subjective
                  rights exist whether governments recognize them or not.

                  This means your entire concept of governance is upside down.
                  The objective is to govern consistent with natural law and immutable or nearly immutable characteristics of human behavior. If you do not, government is inefficient – i.e. burdensome and expensive, and our standard of living declines. The perfect utopian government we be transparent, cost free, with humans all behaving as they please with a few unwritten norms preventing violence and improving efficiency.
                  We likely will never have that. But the objective is to approximate that as close as we can. The less intrusive government is the closer it conforms to our behavior (not the other way arround), the higher our standard of living. And that is the objective.

                  But if your goal is to make everyone worse off – by all means continue as you are.

                5. Yes, I see the problem. You beleive govenrment can control the wind.
                  You do not grasp that what you keep calling “nullifying the value of money”.

                  Is just the normal way things work. You are quite litterally running afoul of the economic calculation problem. In an odd way you have accidentally invented your own form of socialism.

                  value is subjective
                  value is set by exchange – that includes the value of money.

                  If the value set in exchange is different from what government commands – government is wrong.

                  It is outside the power of government to change this. This is an attribute of human nature.
                  If it was inside governments power to do so, socialism would not only not fail, it would work well.

                  But we know better.

                  Price controls – which is essentially what you are talking about – fail, always. That is just about the most universal bit of economic knowledge we have.

                6. “Your anti-federalist libertarianism converts freedom into slavery. And that is the utmost unsound basis for the law, dhlii.”

                  Not anti-federalist.

                  I like the US constitution – it is the best framework for govenrment humans have created.
                  But I am not under the delusion it is perfect.

                  You have very bizzare definitions of freedom and slavery.
                  purported Freedom is not being able to choose for yourself, and slavery is ?

                  How can anyone pushing a system that can be trivially circumvented by people lying be talking about unsound ?

                  How can someone trying to criminalize intentions rather than actions talk about unsound ?

                  Do you have some magic machine that will enable you to know my intentions when I refuse to provide you service ?

                  Maybe I do so because you are black. Maybe because I want that night off, maybe because I am having a bad day.

                  Maybe because you are a surely customer.

                  You do not seem to grasp that “free” is a critical part of free exchange.

                  If both parties can not say no, the exchange is not free, and if that is not the case, then the entire market has been distorted.

                  Why I say no, and what it might take to get me to say yes – if that is even possible, is not the business of government.

                  You are under the delusion that because in the retail portion of the market that because sellors rarely say no, that they no longer can.

                  If you are free to do something you must also be free to not do it.
                  Compelled speach violates free speach.
                  Compelled exchange destroys free exchange and in atleast a small way harms us all.
                  Just like compelled speach.

                  1. Not one of your views on the subject of economics has been imbued with the force of law; because none of your views on the subject of economics has been enshrined in The Constitution of the United States of America. Consequently, none of your views on the subject of economics are relevant to the interpretation of The US Constitution nor the Acts of Congress nor SCOTUS decisions about the Acts of Congress. Your just blowing so much economic smoke in peoples’ faces as though your opinions were the law of the land. They are not.

                    1. Economics is human behavior. The power of govenrment over that is extremely limited.
                      Only slightly greater than the constitutions power over the weather.

                      And yes several principles of my economics ARE enshrined in the constitution.
                      State with the “contracts clause”.

                      No my views on economics are not relevant to the reading of the constitution.
                      Just as the constitution is of little significance with regard to the economy.

                      Ultimately reality works as it does – the power of govenrment to alter it is quite limited, and efforts to do so destructive.

                      As an example government can dictate regarding money as it pleases.
                      It can not make people function that way.

                      India and Venezeula recently tried – and failed.

                      Economics is not the law of the land. It is the laws of human behavior.
                      In a conflict – either those of human behavior will win, or we will be much less well off.

                7. Diane, I think you have gone further into the Twilight Zone then Rod Serling went. Above course Rod Serling had to have some boundaries or he would have been laughed out of the business. I think the statement above demonstrates you lack those boundaries.

                  1. The argument is absurd, and it’s doubtful Diane believes a word of it. Diane’s last notable act was a 30 post marathon insisting to you that she’d answered a question she’d never answered. Septuagenarians who engage in puerile gamesmanship are insupportable.

                    1. DSS, Of course, Diane’s argument regarding money is absurd. Many, perhaps most of her arguments are absurd and have no logical basis. Dhlii is responding directly to her arguments in Dhlii’s fashion. A lot of what he says is logical. I note your criticism of Dhlii, but I don’t note you stating what you are so critical of and why. I agree with some of what Dhlii says and perhaps disagree on other things, but he comes from a point of view that has merit.

                      One thing I believe he has left out in his discussion with Diane is that money efficiently transmits a lot of information.

                    2. Thank you.

                      Much of what I am arguing is just that same scottish enlightenment classical liberalism.

                      The monetary arguments are quite interesting and important for the future.

                      First, governments either have or are losing their monopoly control of money.
                      While one aspect of that is emerging crypto currencies – which even the director of the IMF thinks are going to have profound impact, there are others. At the top tiers of the economy – securities work exactly like money, and today dwarf government money. I am deeply suspicious that one of the reasons that QE did not work is because government money has just become too insignificant.

                      There are also alot of monetary things that are happening internationally.
                      Post 2008 there was a resurgence of interest in gold – and not be Ron Paul gold cranks, but but reputable people who did not take gold seriously before.
                      Much of the world has the perception that because of the dollar as the worlds reserve currency the US sneezes and the world gets the flu. Russia and China are trying to shift away from dollar denominated exchange. Russia and China are actively trying to break OPEC of its dollar ties.

                      But one of the problems is that the desire to leave the dollar is not the same as a willingness to shift to another nations currency. Right now that leaves 3 choices:
                      a mixed money global economy.

                      I do not see any of those in the short term.
                      Gold will rise in importance, but it is not re-ascending to global dominance.
                      Cyrptocurrencies will expand exponentially, but they have a long long way to go.
                      Right now they are making inroads in broken economies – like Venezuella and India.
                      All gains are likely irreversible, and build a platform for new gains.
                      But there are many orders of magnitude growth needed to become a big player in world trade.

                      A mixed money economy is too complex.

                      Such is my crystal ball.

                      Maybe something else I have not thought of will happen.

                      But what is most likely is that the ability of governments to control money is going to weaken significantly.
                      And that is a good thing.

                      Late4diners monetary arguments are the most off the wall I have seen in a while.
                      This not being forced to engage in exchange will nullify the value of money and lead to ruin argument is fascinating and not something I have ever heard before.
                      But it completely misunderstands the significance (or lack) of money.

                      Money is important, valueable, useful, a store of wealth, a means of exchanging wealth.
                      But it is not wealth.

                      You can not create wealth by changing money supply.
                      So much bad economics arrises out of fixations with money.

                      We produce value (wealth) in order to consume value.
                      That is the engine of the economy, or standard of living.

                      When you say you want people to be better off – the answer requires producing more value.
                      There is no other way.
                      If an economist is talking about how to make things better and they are not talking about how to produce more – they are wrong.

                    3. Allan, my MS word count function tells me dhlii has made over 100 posts extending over 12,000 words, i.e. 20 single-spaced typed pages, frequently replying to himself. His writing has the same weird stream-of-consciousness quality you see in George’s. I tend to skip over kooks. I’m familiar with his genus. Some chuffer on about gold and the depredations of ‘socialist money’ (giving you dollops of the epistemology of Murray Rothbard), others traffick in neo-Confederate historiography (with dollops of bilge about the monstrous Abraham Lincoln), others recite twee political controversies of the 1790s, others play Ron Paul and offer you inane nonsense about the Near East being awash in violence because “we’re over there” or inane nonsense about how entering World War II was the consequence of a shizzy sales job by that schemer Franklin Roosevelt. I haven’t bothered to find out what dhlil’s particular brand of crankery is.

                    4. Not a Gold crank.
                      My expressions on Money are consistent with those of say Adam Smith or Milton Friedman.

                      Have not read Rothbard.
                      Not neo-confederate
                      Didn’t discuss lincoln or Rand Paul, or the near east, nothing about FDR or WWII

                      It is impossible to discuss the creation of the constitution – which is a topic OTHERs started withour refering to the period from 1787.

                      For someone who has not bothered to find out, or read much of what I have written you sure seem to be capable of erroneously pontificating on it.

                      You are free to read or not what I have written. You are not free to misrepresent it or make assumptions with your own integrity intact.

                      In otherwords when you say I have not read much of this but hear is what it says – you show yourself a fool.

                    5. TFSF: “His writing has the same weird stream-of-consciousness quality you see in George’s. ”

                      “extending over 12,000 words”

                      That is true, but I don’t believe that is how one should gauge what another is saying. The best of writers are able to write using a lesser number of characters while expressing themselves better, but that has to do with one’s writing ability and not the content. If Dhlii were just randomly posting his ideas I would agree with you, but he is being responsive to Diane (L4D) whose ideas are a bit whacky, not because she is a progressive rather because she doesn’t seem to adhere to any fixed principles and glosses over anything that interferes with her ideas that are scattered all over the place. That presents a challenge to anyone including Dhlii for dealing with scattered unprincipled ideas means a lot of rhetoric. I would prefer more focus on one or two ideas and more use of prior statements that demonstrate Diane’s lack of consistency and knowledge That requires a lot of work in part because of the formatting of the blog.

                      I’ve looked at the content of Dhlii and much of it is sound from his point of view. I can read a socialist’s content as well and conclude the same thing so it has more to do with logic, consistency, and principle than it does with one’ ideological position.

                      I am interested, however, in disagreements over the core ideas Dhlii provides. All of this is based upon how one wishes to perceive the Constitution. Is it an anchor to our society that is changed by amendments or is it like toilet paper where one uses it for awhile and then uses a new one.

                    6. Thank you for the compliments.
                      Yes, much of what I post is responsive to Diane, and trying to debunk wacky sometimes leads to broad digressions.

                      I have never heard something quite like here public access laws prevent nullifying the value of money argument before. I am pretty sure it is a permutation of “the labor theory of value” aka marxism.
                      I am not she she grasps that.

                      There is a stream of consciousness nature to my writing.

                      That is a choice of sorts.
                      I have been published several times. Good concise writing is difficult and time consuming.

                      I post to comments because I enjoy it. I do not spend hours editing and condensing, and avoiding repetition and refining.

                      In otherwords my comments are long because I can think and type fairly fast, but because editing is very slow and I choose not to use the time I alot to the internet for editing.

                    7. All of what I have written regarding economics is just classical liberal economics. Most of it can be found in Smith’s WON, Value is subjective is a late 19th century development.

                      Further a very large portion of it is not even classical liberal – it is pretty much Econ 101, whether Keynesian, Neo-Keynesian. Neoliberal, …. Before he went wackado, even Krugman wrote much the same.

                      What I have written regarding the constitution has three layers:

                      1). The rule of law requires understanding law and constitutions by some means that to the best of the ability of humans to do so produces a single result, regardless of your ideology, regardless of your point of reference or time. The aphorism that ignorance is not an excuse requires that our law must ultimately be intuitive. Rooted in what is typically called our sense of right and wrong.
                      We can change text, when we do not like what it says. When interpretation changes without changing the text, we are lawless, laws constitution become the whim of the day. It is better to be anchored and wrong – because we can change wrong by changing the law, than to be unanchored and adrift.

                      2). I have roughly outlined a some guidelines for statutory interpretation. I am not sure that any of these are actually controversial. The courts have been trying to follow them for constitutions, law, and contracts for centuries. To the extent they are the slightest controversial it is that they are at odds with the modern concept that somehow they do not apply when you get to the supreme court and are interpretting the constitution. There are books on statutory interpretation, all I have covered is a few basic principles.
                      But the point is the scheme I have described – which is only controversial in that SCOTUS follows it at whim, also conforms to #1 – it produces to the greatest extent possible a single result regardless of ideology

                      3). Diane has made numerous errors regarding the words that are actually in the constitution. It does not appear she has read the 14th amendment, the contracts clause, the commerce clause the 13th amendment, the 9th amendment, the 10th amendment. She has not merely adopted the lawless “living constitution” scheme, but is using a made up constitution.
                      She reads in words that are not there and out words that are, and ignores most of it.

                      Since “originalism” and “original intent” have been batted about. #1 is a logical argument for essentially an algorithmic approach. SOME forms of originalism meet that – I think Randy Barnett’s might. What has been called originalism in the past 4 decades, that of Bork, or Scalia does NOT.

                    8. “I am interested, however, in disagreements over the core ideas Dhlii provides. All of this is based upon how one wishes to perceive the Constitution. Is it an anchor to our society that is changed by amendments or is it like toilet paper where one uses it for awhile and then uses a new one.”

                      The moment you can change the meaning without changing the text, you are in deep shit.

                      I think as an example there are a large number of people who would say the “interpretation” of the commerce clause has gone way way too far.

                      One of the problems with unanchored interpretation is there is no way back.
                      IF we returned to the pre Wickard meaning of the commerce clause 2/3 of the federal government would disappear. No one is going to do that. Not Gorsuch, not Thomas, Not Scalia.
                      We have a mistake we can not correct. We might whittle backwards a little for a while, but essentially unanchored interpretation inherently means that government expands until it fails.

                      Which jumping to economics – we know occurs. While there are specific reasons that Socialism fails – see the debates on the economic calculation problem, it is also true that big government of all forms inherently fails. There is relatively simple logical reasons for that – government is far less productive. The larger government is, the less productive we are. There is also empirical evidence to support that.
                      Myriads of economic studies find that from 20% of GDP up that each 10% of GDP that government spends decreases the rate of increase of standard of living by 1%.

                    9. His latest post reads like random entences strung together. I wonder if he’s some sort of spambot.

                      He wrote a frigging term paper in a single discussion thread, throughout much of it talking to himself. He’s not that difficult to figure out.

                    10. TFSF, he is basically talking about how value is created and how productivity relates to value along with the meaning of money and commerce. Diane is shooting a shotgun at close range and totally missing the target. I agree with you. It would be better for Dhlii to focus more on one or two errant points that Diane is making, but that is his choice, not yours nor mine.

                      The real question is whether or not you disagree with his main economic points. I think his postings differ substantially from George’s because I have had to point out to George that he drew conclusions based on false facts.

                    11. “In otherwords my comments are long because I can think and type fairly fast,…”

                      This is very understandable and I wasn’t meaning that as a criticism rather as an inroad for those upset with your length and writing style (not bad for a first draft) to find what they disagree with. Criticism is easy until one has to copy exactly what another said and then point by point prove what they said was wrong.

                    12. Feel free to criticise. I have thick skin. Real pleasure would be a challenging conflict with someone capable of defending a different position. Diane’s argument was lightweight crap. I wasted too much time on it. I was more using her argument as a means to say things I wanted to say.

                      As I said. I do this for pleasure. Certain things are not going to change, even if I agree with you that well edited and concise they would be much stronger and more coherent.

                      I am also probably a bit to OCD – in responding to nearly every error in whatever post I target.

                      Anyway, being free means you do not have to read my long posts.

                      It even means that as another poster here managed, you can decide exactly what they say and what I beleive and who I am without bothering to read them or know anything about me.

                    13. Dhlii, I fully recognize where the principles arise from and you do not require agreement from anyone for ideas that are correctly presented and logical. Most of all I admire your corrections of Diane’s misuse of the words written in the Constitution. She sounds like some of the lousy teachers I have had in the past that memorized passages and regurgitated them without understanding.

                      Many call Scalia an originalist, but I believe he admits being a textualist even though lay sources such as Wikipedia probably refer to him as an originalist.

                    14. I have been trying to present a meta philosophy for a determinative means of interpreting the constitution.
                      Which determinative means is a different debate.

                      I have made an argument for a specific means that I think corresponds to that of Randy Barnett

                      I am not not sure what the exact label for Scalia would be.
                      He was perfectly willing to deviate from any form of originalism on occasion.
                      Frankly we have made sufficient muck of things that unqualified originalism in most any form would require change to govenrment that wise or not are just not happening.

                      Bork and Scalia also had enormous deference to democratic majoritarianism.

                      I see a constitution as providing enumerated powers.
                      Where a power is not granted the courts answer should be no.
                      While our liberty is constrained only by
                      bars to initiating violence and fraud
                      the requirement to keep agreements
                      the obligation to make whole those we harm.

                      Where a government power runs afoul of an unconstrained freedom – the power loses.

                      Representative government is likely the best root to good govenrment,
                      but a constitutionally limited Autocracy would out perform an expansive democracy and provide more Freedom.

                      Even Mill noted that democracy ultimately strives for more repression that totalitarianism.
                      We do not tolerate the king meddling in our affairs, but each of us is sure of our own right to meddle in the lives of our neighbor.

                      Kings may be more sensitive to the toes they step on than majorities.

          1. That is a fun question. I guess I’d have to say, yes, I am free to go other places. I can not make someone love or like me and to do so by force is worse than being discriminated against.

            1. Jim22, you raise an excellent point. I’m sorely tempted to concede it. The best things in life are not subject to command. Peace, love, understanding, friendship, admiration, respect, gratitude, freedom, justice and the list goes on. We might as well add toleration to the list of best things in life that must be given freely to those who trouble themselves enough to earn and deserve them.

              However, some things in life ought to be taken for granted simply by dint of being a living, breathing, sweating human person. Equal protection under the law is just such a human entitlement. Given any person who has earned his or her money by the sweat of his or her brow, that person ought to be equally protected under the law to spend his or her hard-earned money at private businesses open to the general public without being discriminated against on the basis of race, sex, sexual orientation, religion and the like; provided that the business at issue is not legally compelled to celebrate the expressive speech and expressive conduct of their customers.

              1. “Given any person who has earned his or her money by the sweat of his or her brow, that person ought to be equally protected under the law to spend his or her hard-earned money at private businesses open to the general public without being discriminated against on the basis of race, sex, sexual orientation, religion and the like; ”


                The 14th amendment and equal protection has nothing to do with that.

                You want to make an arbitrary disinction between buyer and sellor. Those are fictions.
                Both parties to any transaction are “traders”. McD’s “buys” you money by paying you in hamburgers.
                Money is just a commodity. Its value is in facilitating trade that is all.

                The economy, standard of living, is producing greater value with less human effort.
                Money is tangential, convenient, a fascilitator.

                We are each engaged in trade.

                So given that there is no difference between the buyer and the sellor.

                If government can make you “sell” to gay people, if can force you to buy from them.
                Today most of us are OK with that.
                But are you OK with being forced to buy from Nazi’s ? Racists ? ….
                We can go further, instead of government saying if you are going to buy, you must by from him,
                the next step is government dictating you must buy.

                If government can dictate who you must sell your coffee to, then it can dictate who you must sell your labor too.

                Last is the practical matter that you are punishing intents rather than acts.

                You are not punishing selling, and you are not punishing not selling.
                You are punishing why a person sells or does not.

                Aside from being stupid and immoral, this is also impractical.

                You are saying that I am passing a law that says you can do certain things – but only if you lie about why.

                We do not want racists and bigots to hide who they are and lie.

                One of the most confusing aspects of the gay weddings cases, is why would a gay couple want to involve people who think they are going to hell in their wedding ?
                Even if I was able to do so, why would I want to force a person who hated what I loved who rejected the validity importance and sanctity of the entire event to be performing a critical function ?

                So you have a law that people can nullify by lying.

                Instead of I can not bake your cake because you are gay,
                I can not bake your cake because I am closed,
                or I am already booked, or the equipment has broken.

                Instead of I can not bake your cake because you are gay,
                yes, ….. and then I deliver a really bad cake.
                or my truck “breaks down” and the cake does nto arrive,
                or ……

                The only reason that gays are able to force christian bakers to bake cakes for them, is because christian bakers will not lie.
                That is a really really bad foundation for law.

                1. No government can compel the celebration of expressive speech or expressive conduct. The Masterpiece Cakeshop case is a First Amendment case involving the free exercise of religion as well as artistic freedom. Turley’s juxtaposition of the cake-shop case with the incident involving the gay coffee-shop owner is not strictly necessary for the purpose of understanding the issues at stake in either case.

                  That people can nullify laws both criminal and civil merely by lying (successfully) is an unfortunate commonplace–not a presumed basis for either criminal statutes or public accommodation laws. It is, however, a presumed basis for sworn testimony by oath or affirmation in both criminal and civil trials. Try to be more careful what you blow up with your anti-federalist libertarianism.

                  1. The cakeshop case is a case about free speach (expression) and free excercise.

                    It is also about free association, and freedom of contract and involuntary servitude.

                    The gay coffeehouse owner would not be a case of free speach or free excercise.
                    It is about free association freedom of contract and involuntary servitude.

                    I do not think you understand the importance of free exchange. It is atleast as important as free speach and more important than freedom of religion.

                    Everything humans do is either exchange or one tail or the other of exchange.
                    If you control exchange you control nearly the entirety of life.

                    involuntary servitude, free association, freedom of contract (free exchange) are all substantially overlapping. Free excercise is really a strict subset of those and free speach.

                  2. people can not nullify laws ordinarily by lying,
                    SOMETIMES they can avoid punishment.

                    Laws are supposed to bar acts – thous shalt not kill.
                    Those acts in a properly constrained law are always wrong.

                    Turning away a black person is NOT always wrong. It is only illegal if you did it because that person was black, and the only way of knowing you did so for that illegal reason is if you say so.

                    The rest of your post is indecipherable. Lying under oath is an irrelevant tangent.

                    I am guessing that you are trying to claim that maybe a person would lie under oath about why they refused service. They do not have to. We do not get that far. You are not obligated to provide any reason for what you have done. You only get in trouble if you provide one that is illegal.

                    If I discriminate against a black person, and am not stupid enough to admit it, you are never going to get me under oath. Unless the courts F’up the burden of proof and the presumption of innocence, you are not even getting me to court.

            2. It is not a guess.

              Freedom is not the abiltiy to do whatever you please.
              It is the ability to do whatever you can – without abridging the rights of others, and without being constrianed by force.

              You are not as an example free to shit in my car.
              You are not free to put a gun to me head and demand that I sell coffee to you.

            1. SOT said, “Anyone who has been turned down for a date has been discriminated against, Diane. They’re still free.”

              Does SOT conceive of “dating” as a form of trade and commerce conducted through the medium of exchange known as money coined by Congress, minted or printed by The Treasury and thereby subject to federal regulation?

              In a state such as Nevada where prostitution is legal, the public accommodation laws could NOT require that prostitutes refrain from discriminating against paying customers based on race, sex, sexual orientation, religion and the like; because the Thirteenth Amendment states that neither slavery nor involuntary servitude shall prevail in any of the states without due process of law.

              And there you have it, once again: There’s always a history!

                1. Neither Slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place under the jurisdiction thereof.

                  Persnickety sticklerism. The paraphrase means the same damned thing.

                2. 13th amendment.

                  Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

                  Section 2. Congress shall have power to enforce this article by appropriate legislation.


                  Involuntary servitude would include forcing a baker to bake a cake against his will.
                  It should have also included forcing people to buy insurance they do not want.

                  1. I am in favor of SCOTUS granting Jack Phillips claim in Masterpiece Cakeshop v Colorado Civil Rights Commission on the grounds of free exercise of religion as well as freedom from governmental compulsion of expressive speech and expressive conduct.

                    I am opposed only to SCOTUS overturning public accommodation laws based upon The Civil Rights Act which is necessary and proper to back up the value of money coined by Congress and paid as wages, tips and salaries to citizens and persons who have every reason to expect merchants to accept their hard-earned money as legal tender for all debts public and private in the United States–lest those merchants be allowed to reduce those wage-earners to the condition of slavery or serfdom based upon race, sex, religion or whatever other demographic characteristics those merchants would discriminate against.

                    What’s money for the merchants is money for the customers. That money ought to possess the same value in Black hands as in White hands, in men’s hands as in women’s hands, in Christian hands as in Jewish hands and in gay hands as in straight hands; provided that the merchant is not compelled to celebrate the expressive speech and expressive conduct of any of those customers, nor to exercise anybody else’s religion but that merchant’s own religion.

                    If you still wish to conduct commerce in a discriminatory manner, you must do so without nullifying the value of money coined by Congress and paid as wages, tips and salaries to whomsoever you would discriminate against relative to the value of money earned by those in favor of whom you would discriminate.

                    BTW, assuming that you see the point, now, it’s almost impossible to believe that it has taken this long to get you to see the point. White money cannot be worth more than Black money. Men’s money cannot be worth more than women’s money. Christian money cannot be worth more than Jewish money. Straight money cannot be worth more than gay money. And Congress cannot allow merchants to decide who’s money has value and who’s money is worthless. Freedom is not slavery.

                    1. God, no!! you are continuing this monetary gibberish!!!

                      Please learn something about money.

                      One thing you could learn is that it is something of utility, not of necessity.

                      Value is the consequence of human action.
                      The human condition improves because of what we produce.

                      Changes to money do not alter what has been produced.
                      They only alter the value of money.

        1. You can not prevent discrimination.
          You can only punish those stupid enough to get caught admitting they discriminated.

          For 22 years I ran a professional business with 50 people. I learned relatively quickly that but for a few positions where whether I liked it or not the norms of my profession required men at that time, that I could hire extremely capable women and they would work for less and be much more loyal.

          That was discrimination. Of course it was only possible because the rest of the profession was discriminating against women.

          Further that is merely one of myriads of ways that free markets respond to discrimination.

          Law no matter how polished is blunt instrument.

          The world will not come to an end if some bakers will not bake cakes for gay weddings – or just because they do not like you. It will not end if gay coffee house owners refuse service to prolifers.

          If some of us actually take offense at this or anything else we can conform our purchasing, or protest or boycott to express our views. Or we can frequent the vendor who reflects our views.

          We are seeing the market work with the recent NFL kneeling for the anthem meme.

          Consumers could have been impressed by the choice of the players and watched even more football.
          Or they could have been offended and watched less.

          All parties were free to do as they please.
          Players could take a knee or not,.
          Owners could fire players or not.
          Fans could attend games or not.
          The press could take whatever side it chose.
          The president could take his position.

          So long as no one used actual force everything is fine.
          Nor must we necescarily get the same outcome today as a year from now.

          1. dhlii – things have gotten so bad for watching the NFL that Roger (I stand behind the players) Goodell is now demanding all players stand for the anthem or be fined. For some reason, the NFL is now the most hated professional sport.

            1. I am only using the NFL as an example to demonstrate that we manage to deal with conflicts of values perfectly fine without law and government.

              Jim Crow laws were passed BECAUSE without them most white southerners did not discriminate sufficiently for those in power.

              We did not need and should not have passed the CRA, nor public accomidation laws.

              Not because people should discriminate on the basis of race or whatever, but because making poor choices (discrimination) is ultimately a self punishing act.

              If the outcome with respect to kneeling for the anthem had been the opposite as it appears – that is fine too!!

              Everyone was free to make their own choices. No choice resulted in the use of actual force, but all choices have consequences.

              If fans had overwhelmingly supported kneeling everyone would be kneeling now.

              My guess is that if the players kneeling were doing so in protest of personal discrimination by the NFL, they would not have this backlash.

              But it does not matter.

              The free market works all of this out.
              It works it out consistent with the greatest freedom and the strongest reflection of our current values.

              It adapts automatically as our values change.

              Public Accomidation laws do not do any of that.

    2. You can have whatever view you want.
      But you can only impose your view by force on others through government.
      The use of force against others – even using government as a proxy is immoral with a few justifiable exceptions.

      Why is the exception you want here justifed and not immoral ?

      1. Because there is an implicit obligation to tolerate our fellow human beings, and the government has a compelling interest to protect the public peace as well as to provide equal protection under the law for all of its citizens. As for the Masterpiece Cakeshop case, no government can compel the celebration of expressive speech and expressive conduct. Public accommodation laws can only compel toleration of our fellow human beings through the provision of equal protection under the law.

        1. I guess the question I have to ask is, why do we need the govt. to step in? Let us vote with our (from dhlii) labor. This is one of the biggest issues I have with the liberal mindset. I believe in human kind enough to take care of our fellow man if govt. would just get out of the way. Yes there are jerks in the world, Let us celebrate who they are.

          1. There’s always a history, Jim22. In the case of public accommodation laws, the history at issue went by the name of Jim Crow statutory discrimination. Not to put too fine a point on it, but . . . discrimination against African Americans was mandated by the former Confederate States under the illogic of separate but equal. That was a major restraint of trade. Let’s be less eager to go backward in time.

            1. Jim Crow works AGAINST your argument.

              Jim Crow laws clearly violate equal protection.

              Jim Crow laws exist because private southern businesses did NOT discriminate sufficiently to make those in power happy.

              Jim Crow laws are proof we do not need public accomidation laws.

              Regardless you do nto fix one wrong with another.

              You strike down Jim Crow laws, that is it.

              Everything else gets settled by people without violence or force and without government.

          2. I believe in human kind enough to take care of our fellow man if govt. would just get out of the way.

            Joseph Sobran made an idiot out of himself trafficking in anarchism in his last years.

        2. “Because there is an implicit obligation to tolerate our fellow human beings”
          No there is not. More importantly, there are myriads of obligations that are not the business of government.

          Government is force. Whatever your personal values, principles, obligations, duties,
          government has a role ONLY in those you can be forced to fulfill.

          “the government has a compelling interest to protect the public peace”
          No force or threat of force outside government is involved.

          “equal protection under the law for all of its citizens”

          That does not come close to meaning what you think.
          Equal protection (and the entire rest of the constitution) is a constraint on government – not on individuals.

          That means laws like jim crow laws requiring discrimination are unconstitutional.

          “As for the Masterpiece Cakeshop case, no government can compel the celebration of expressive speech and expressive conduct.”

          There are so many rights being violated, I do not understand why people think this is an issue.
          You are making the case on free expression grounds, but it is also valid on free excercise grounds.

          But you do not need the first amendment – government should either not at all, or only with great care restrict ANY rights or freedoms.

          “Public accommodation laws”
          Should have been found unconstitutional long ago.

          “can only compel toleration of our fellow human beings through the provision of equal protection under the law.”
          Again equal protection (nor the constitution) work that way.
          The equal protection clause bars government from making laws restricting our rights disparitly.
          It does not compell government to make laws of any kind.

    3. I agree.

      In the today’s topic, I would not appreciate the views of the customers but they weren’t doing it in the shop. The proprietor’s behavior would have me leaving never to return. Outside I would take as many of the group’s flyers that I could and trash them. My way of dealing with Planned Parenthood protestors that I saw while driving by had me doing a U-turn, going inside and leaving a check. I don’t like their viewpoint but engaging them would have been a waste of time.

      1. That is a perfect example of free speech and voting with your wallet, and how everyone can disagree in an entirely civilized manner. Well, as long as you collected flyers that were already floating around and didn’t take them by force!

    4. “A licensed establishment should be open to all, without regard to race, ethnicity, religious or political views, gender, sexual orientation or disability. The establishment should be required to provide anything they sell ”

      Tin, let’s do some line drawing. An owner has a bed and breakfast. He rents out several rooms to the public. Must he give up his livelihood if gays want to rent a room and he doesn’t want them in the bedroom next to his? Should he be closed down because he doesn’t have an elevator? If he is a racist should he be closed down because he doesn’t want to rent to those of a different color? When eating breakfast should his pre-breakfast prayers be interrupted by eating or talking?

  14. The shopkeeper’s sense of timing is very, very bad.

    On Monday, (Yesterday), Washington’s Division I of the State Court of Appeals–in which Seattle is situated–ruled that sexual harassment torts can be filed against businesses who are alleged to have engaged in sexual harassment or discrimination against customers. Since the coffee shop is a public place, it can be sued for discrimination based on sexual harassment. The conduct of this shopkeeper could be considered sexual harassment due to his intentionally causing emotional upset in the customers. It is actionable, but for guilt that is a matter for the triers of fact and law.

    It doesn’t take much to file a sexual harassment complaint in Washington and I believe the customers here could articulate sexual harassment which the Courts ruled in in several prior cases sexual harassment constitutes discrimination based on sex, which is prohibited under state law.

    Here is the case.

    http://www.courts.wa.gov/opinions/pdf/750577.PDF (Floeting v. Group Health Cooperative)

    Also in Washington, if the customers can prove that the refusal to render service was on account of the customers being part of a protected class, a religious identity, the shopkeeper is done. He can be both civilly and criminally sanctioned.

    We featured an article here discussion the Arlene’s Flowers case from February of 2017:


    Arlene’s Flowers was cited several times in Floeting.

    Historically, WA has been very strong in its protection of consumers from discrimination in services. How closely held the entity is (proprietorship, or if incorporated) is irrelevant under Washington statutory, administrative, and common law. The state supreme court was very clear that the intent of the legislature was that the rights of consumers to be free from discrimination was paramount and trumped the free speech and religious rights of businesses or owners. Licensure of a public business is granted on the condition that all customers be treated equally with regard to class protection. The only alternative an organization has is to close its doors to the public and be a members only affair.

    I suppose that both sides are going to use this as a Cause célèbre to take this matter to trial to voice their opinions. While this banal behavior might work well for some kinds of customers in Seattle, he just bought himself a potentially big legal bill and fight simply because he could not bite his tongue and serve a few cups of coffee to his paying customers.

    1. Darren – a class-action by every Christian in the state would just about wipe him out. I am sure his vendors are happy with him, too. This is not the kind of PR you want. In fact, I think Christians should go in every day just to be thrown out. It will help the case. They should set up a table in front of his coffee shop to hand out their literature, that would just rub it in. Personally, I do not care whose a** this guy f**ks, but he needs to get a grip on his business model. He is not going to make any money this way. Christians like to boycott so he will be next on their list, rising with a bullet.

      And the Jesus he wants to f**k is the Renaissance version, which is Roman/Greek, not Jewish. Jesus was a good Jewish boy, Semitic. However, you have to go really far back in Art History to get any painting that represents him as Jewish.

    2. On another rather bizarre note, an acquaintance of mine–who was with the State Patrol–worked the WTO Riots in Seattle. He was assigned a plain clothes detail to infiltrate the rioters and gather intelligence.

      During one of the more kinetic days, he and his partner decided to take a lunch break and went into one of the downtown restaurants. Inside both anarchists and Seattle PD were waiting in line together ordering their meals and each went to their own side of the restaurant, all quiet and ordinary. An hour earlier they were shouting at each other, breaking stuff and being arrested. Surely an hour after lunch they would be back at it again. But it was lunchtime and they were both “off the clock”, so to speak.

      He remembered it was like the Looney Toons cartoon Sam Sheepdog and Ralph Wolf. The two characters would be at each other’s throats until the noon-whistle, where they would then each lunch together until going back to work to fight again.

      Maybe if people of opposing forces acted this way we might at least get along a bit better.

    3. Darren, thanks but I am not happy. A proprietary establishment is sufficiently similar to a residence that the owner ought to be able to kick out anybody that the owner doesn’t want inside.

      The state license just indicates that the place is clean and the food is wholesome. I suppose that I am terribly old-fashioned.

      1. Mr. Benson, are you suggesting that the customers of proprietary establishments are trespassing, or breaking and entering, or conducting an unreasonable search or seizure at such proprietary establishments?

        1. If you are in someone else’s property – even by invitation and asked to leave. You are tresspassing if you do not.

          You can not break and enter a place you are invited into.

          the 4th amendment is a constraint on GOVERNMENT.

          You do not seem to understand. The constitution is the law for government. It does not impose any constraints on individuals. Our statutory law frequently constrains individuals and most conform to the constitution.

      2. David Benson – your argument did not work with the SC when they were trying to keep blacks out of public accommodations. Something about the Commerce clause, but don’t hold me to that. So what we settled on was Men: no shirts, no shoes, no service. Women: no shirts, free drinks. When your argument didn’t keep brave black and white students from sit-ins at lunch counters, how do you think it is going to work for a coffee shop? NO DOGS, IRISH OR BLACKS ALLOWED. Ah, the good old days.

        1. Paul, The SC, in that case, abridged the rights of a small business owner. Whose property and whose intellectual property is it? Are you willing to abridge property rights to satisfy the majority in power?

          I’m not saying you should or shouldn’t, but these things aren’t so clear because when we arbitrarily give to one in instances like this we are taking away from another and not permitting a natural solution to occur.

          1. When these things “aren’t clear”
            That usually means we did something wrong.

            Public accomidation laws should have been found unconstitutional.

        2. So the argument is bad law and bad decisions are a justification for further bad law ?

          Regardless, the Coffee shop case demonstrates the flaws in public accomidation laws.

          Assuming we are going to be so stupid as to decide to legally bar private discrimination,
          Religion is more firmly protected than sexual orientation.

          The right to do something includes the right not to – otherwise the right is meaningless.
          The right to participate in religious practice requires the right NOT to participate.

          Therefore the cake baker can not be forced to bakes cakes for weddings he beleives violate his religion.

          At the same time the coffee shop owner can NOT evict people who have religious beleifs he finds offensive who are not practicing those beleifs.

          The simple solution that saves the courts getting into messes they do not belong in is to get rid of public accomidation laws.

          There are other remedies.

    4. The answer that actually respects our real rights – is to let everyone (except government) discriminate as they please. And to protest or picket if you do not like it.

      There is no right to coffee of cake. There is no right to the respect of others.
      There is no right to force others serve you just because they have served someone else.

      When you protect freedom – even excercises of freedom that you do not like, we end up with the simplest cleanest answers and means besides government and force to modify conduct we do not like.

      The right answer is the one with the greatest individual freedom

      1. The courts and anti-discrimination laws do not support your argument. Under your proposal Jim Crow laws would be proper and many people could systematically be denied accommodation.

        1. You’re confused. Jim Crow laws mandated segregation. Principles of freedom-of-contract and freedom-of-association permit proprietors and landlords and club members to do as they please. That may mean discrimination or no discrimination.

          1. Not confused at all.

            Jim Crow laws did mandate discrimination – and thus violate the 14th amendment.
            We never needed the CRA – jim crow was already unconstitutional.

            Regardless, I suspect we share the same views. I think you misunderstand my argument.
            It was a reductio ad absurdem.

            1. Jim Crow laws did mandate discrimination – and thus violate the 14th amendment.

              They don’t. Jim Crow laws are an exercise of general police power.

              1. Jim Crow laws are an excercise of general police power – though many violate the contracts clause which applies to the states, and pretty much all violate the 14th amendment.
                Which pretty much exactly says states can not write laws discriminating against negros.

        2. That would be the same courts that decided Plessey V. Fergesson or Dredd Scott ?

          Appeals to authority are fallacy.

          If you actually wish to debate the constitution and the law as applied, you will inevitably end up with a self contradictory mess.

          A basic principle of logic is that if you have a false premise in your argument you can prove anything.
          Our legal and constitutional framerwork as it is, is rife with false premises.
          Anyone can prove anything.

          The issues we are debating here are illustrative. You (and Prof. Turley) are going to have to bend yourself into constitutional and legal pretzels to get any workable outcome except private discrimination is not the business of government.

          No matter what other outcome you seek you will either end up with a rights conflict, or government and courts trying to make fine grained choices – weighing preferences over the expression and rights of gays vs. christians vs. ….
          Ultimately that rests on the personal values of those making the decision – and that is NEVER how we want law decided.

      2. dhlii, technically speaking, The Constitution and The Bill of Rights recognize no right to discriminate in favor of, nor against, any person nor group of people, either. The greatest individual freedom offers no protection against trespassing, breaking and entering, burglary, robbery, theft, larceny nor worse. Presumably you want your government to protect you and your individual freedoms against the criminal element amongst the citizenry. Sometimes the simplest solution is not the best.

        1. The Constitution constrains federal intervention into private transactions. State constitutions incorporate certain immunities. Depending on where you live, you might be able to state a claim. We’d need honest judges, which we do not have.

          Whether or not a statutory law can be tested contra a superordinate law (say, the federal constitution or a state constitution), law in a free society should coerce private transactions only in very few circumstances. Bakeries and coffee shops in thickly populated metropolitan centers are not on the list. Rental property is almost never on the list.

          1. If your idea of government requires honesty in judges, you are no different from communists claiming socialism would work if only we had perfect leaders.

            We have limited govenrment BECAUSE humans are imperfect, because judges are not always honest.

            I would suggest reading about public choice theory.

            Those on the left need reminded that the very people they do not trust to run business, are the ones who will be given power – the use of force, and run govenrment.

            1. “I would suggest reading about public choice theory.”

              James Buchanan, Nobel Prize winner

              Conclusion: (IMO) Incentives and self-interest are controlling features that make things happen. Incentives become diluted at the federal level and the self-interest of our politicians, whether we favor them or not, is not necessarily parallel with our own. Therefore we should start at the individual and local level leaving less decision making for the federal government where the major obligation is to protect the liberty of the nation.

              1. Partly correct.

                More simply, the very things you fear will make private actors misbehave, become much worse when make those people public actors and give them power.

                While public choice would favor local govenrment, it would more strongly favor only government that is absolutely necescary.

                While Buchannon got the nobel madison came up with an early form 250 years earlier

                “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
                Federalist 51.

                1. dhlii – when I was teaching civics and we did the Federalist Papers, I renamed them The Selling of the Constitution, because some contradict others. It depends on who they were trying to convince. The writers were trying to be all things to all people to get the Constitution passed. They had the moral compass of a used car salesman from the 1960s. There are some pithy statements that are worth quoting, but many of them have opposing pithy quotes.

                  1. The federalist papers ARE the selling of the constitution, and that is precisely why they are important.
                    MORE important than the intent of the founders.

                    The federalist papers are what those who were to ratify the constitution were told.
                    If you followed what I have said about legal interpretation in other posts,
                    it is the understanding of those who RATIFY the constitution – essentially the meaning as understood by the ordinary person at the time the law or amendment was passed that matters.

                    The people who initially write the law or the constitution are NOT the source of authority of its meaning.
                    The understanding of the people it initially applied to are.

                    And yes, the federalist papers were the selling of the constitution.
                    They are the promises made by the used car salesmen to close the deal.
                    And therefore they are part of the deal – atleast to the extent that the people bought what they were told.

                    That is also why the antifederalist papers while important in helping understand the flaws in the constitution, do NOT tell us what it means – though sometimes they help us know what it does NOT mean.

                    BTW the federalist papers were written by Hamilton, Madison and Jay.

                    1. dhlii – thanks for the reminder as to who we ‘think’ wrote the Federalist papers. I took a 6 semester hour course (2 semesters) in the history of the US Constitution and we had to read all of them. And the Anti-Federalist papers. Most courses only assign one or two papers they think are important for you to read. We read them all, discussed them and took an essay test on them. A fun time was had by everyone.

                    2. I beleive that it is well established as a fact that hamilotn, jay and madison wrote them.

                      It is also established with only a few exceptions who wrote which ones.
                      It think there are a few that Hamilton claimed authorship of that we are pretty sure Madison likely wrote.

                    3. dhlii – we both know they are honest guesses, not factual knowledge. Only the writers know who they were, we don’t. There is a new biography out on Rasputin. For over a 100 years the stories we have been telling about the man have been wrong, interesting what new deep research will do.

                    4. As I recall correctly, I beleive as a result of his Hamilton dueling death with Burr ended up with some of his papers becoming publicly available. In those he was revealed as one of the authors of the Federalist papers and he identified the specific papers that he wrote.
                      This lead to much later revelations by Jay and madison.
                      So no these are not guesses.

                      There is a bit of intrigue because there are small overlapping claims of authorship – I think mostly between hamilton and Madison.
                      There are also some that hamilton claimed to have written that there is good evidence were written by Madison, but that Madison disowned because there positions were politically inconvenient for him at the time.

                      All of this was well after they were written, but while Jay and Madison were alive.

                      So no, mostly this is not guesses.

                      The guesses are mostly experts asserting that Hamilton claimed papers he did not write, and Madison did not claim papers he did.

        2. “The Constitution and The Bill of Rights recognize no right to discriminate in favor of, nor against, any person nor group of people, either.”

          Diane, The way you are wording your responses leads one to believe that you misunderstand the purpose of the U.S. Constitution. It was to limit federal activity, not to enhance it.

        3. Not interested in technically.

          I am with the anti-federalists, the bill of rights was a mistake.
          Though I would note that the 9th amendment incorporates any rights not in the bill of rights.

          The federal government may do only what the constitution specifically empowers it to.

          There is no clause empowering the government to bar private discrimination.
          There could not be.

          Discrimination is merely a synonym with a negative conotation for a bunch of other words

          choice, freedom, liberty.

          If government can tell me I must serve prolife customers, it can tell me I must make any choice as it dictates.

          Of course we are protected against Tresspassing, Property is a right. There are myriads of ways to demonstrate that.

          Regardless, we are always individual empowered to protect our rights.
          But the purpose of government is to secure our rights.

        4. With respect to government – always or nearly always the simplest solution is the best.

          The sole purpose of govenrment is to secure our rights – do you actually wish to debate that ?
          The constitution is a framework for government enumerating the powers of government to accomplish that objective.

          Government is limited because it has a very limited task to perform.
          One that we can actually perform ourselves, but do better with the assistance of government.

          In all else we are free. If we screw up – the consequences are on us.
          Complexity is deliberately kept in the sphere of the individual.

          Government is force. Do you really want complexity in the decision making regarding the use of force ?

          I would further note that in the specific instance being discussed the ONLY resolution that does not end up as an indecipherable mess where the values of some are imposed on others by force is that which removes government from private discrimination.

  15. If the establishment is a proprietary one, the owner can refuse. It is his/hers to do with as wished.

    If a corporation, even a narrowly owned family one, then no, all must be served. Corporations exist solely to enrich the stockholders; nothing else.

    1. No, corporations exist to limit liability to investors. You incorporate to limit losses to what you invested, segregating your other assets.

        1. Not really. That the New York Times is an incorporated enterprise does not strip it of freedom to publish.

          Freedom of contract and freedom of association has been disregarded as part of the legal profession’s war on merchants and landlords, not because the merchants and landlords incorporated their businesses.

        2. No they do not.
          A corporation is merely many people voluntarily joining together for a comon purpose.
          People do not have less rights acting in a group.
          Further the first amendment is understood to guarantee the right to free association.

  16. I do not think he has the right to throw them out because of their religious views. And I hope they sue and get the coffee shop and make it a Christian coffee shop. 😉 Why is it gays have a problem with Christians, but are afraid to confront Muslims who are throwing them off roofs.

    Borgman is dead wrong on the law and I am sure he has violated some city ordinance. Including disturbing the peace. Indecent language in public, etc.

    1. The Muslims play for keeps in the Near East, Central Asia, and North Africa. In the occidental countries, Muslims are part of the coalition-of-the-fringes at war with the normies.

      The disposition of homosexuals toward evangelicals &c is, one might offer, a function of three phenomena: the bitchy competition over aesthetics and taste among homosexual men (evangelicals tending to have a certain aesthetic verbal and visual), the essential narcissism of homosexual men (which finds failure to applaud as hostile), and the free-floating aggression of lesbians (who tend to be angry with pretty much everyone, including other lesbians).

  17. Vulgar much?

    Wow. Those people probably wouldn’t engage the ACLU or hire an attorney over it. Hopefully they will allow his rant to be considered in the court of pubic opinion.

    All this really does is show the hypocrisy. The owner’s zealotry for whom he chooses as a romantic partner would probably translate into forced cake baking for nuptials.

    I don’t completely agree with the customers’ views albeit, I don’t know all of them. However I would never frequent a place where the owner demands tolerance but offers none.

    I agree with Professor Turley.

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