When I look at your link it doesn’t seem to be the case that this is about laws enabling gay marriage. It’s about a law called the Oregon Equality Act of 2007 that prevent businesses to discriminate against gay people. Whether or not the government has a law recognizing gay marriage that law would prevent bakers who fall under the “Public accommodations” section from baking those cakes. Given that only in 2014 Oregon seems to have returned to legalized same-sex marriage. That gives 7 years without a government having legalized same-sex marriage where as far as my understanding goes a baker should be banned to refuse selling wedding cakes to gay couples.
I agree that the laws in question are different, I would argue that the passing of those laws aren’t independent events.
Apart from that I don’t think it makes sense to have special regulation about baking cakes that specifically speak about the freedom of bakers to choose whether or not to bake cakes for certain purposes.
Except that’s just what we have here. If say the KKK asks for a cake that depicts a black being lynched the baker is likely to refuse and is likely to be able to get away with refusing. What the law, as interpreted in practice, says is that baking a gay wedding cake is something that bakers specifically cannot refuse to do.
I agree that the laws in question are different, I would argue that the passing of those laws aren’t independent events.
The laws share a similar motivation and as such aren’t independent but here the core question is whether the government can forbid private businesses that operate publically from discriminating based on sexual orientation.
In a partisan environment where everyone is mindkilled most people have likely the same opinion on that question as the question about gay marriage but that doesn’t make them the same question.
If I get treated differently at the door of a nightclub because of my gender, I don’t think that’s basis for suing the nightclub.
On the other hand I expect to be treated by the government in a way that doesn’t discriminate based on gender.
By muddling those issues together, you prevent rational political discourse.
Except that’s just what we have here.
No. The law doesn’t speak about baking cakes.
Laws as supposed to be written as simple as possible.
Writing a law that says (among others):
“Public businesses aren’t allowed to discriminate against homosexuals. The expectation are bakers that are asked to bake cakes for homosexual weddings.”
That’s crappy law making. If laws get written that way their complexity rises. Baking cakes for homosexual weddings isn’t important enough to be written about in a law.
On the other hand euthanasia is.
In case you think I’m arguing irrelevant technicality, the fact that most people don’t understand that simple laws are good is on of the core reasons why we have so much complicated bureaucracy.
Nobody cares about low bureaucracy when debating how to solve ideological charged issues :(
By muddling those issues together, you prevent rational political discourse.
The issues are already muddied, I’m merely acting on the basis of this fact.
The laws share a similar motivation and as such aren’t independent but here the core question is whether the government can forbid private businesses that operate publically from discriminating based on sexual orientation.
Except that’s not how the law is being applied. A law against discrimination against gays would forbid bakers from kicking out patrons who happen to be gay. (Granted “anti-discrimination” isn’t exactly a coherent concept to begin with.)
This is similar to the difference between forbidding restaurants from putting up signs saying “no Jews allowed” and requiring all restaurants to serve kosher meals.
Granted “anti-discrimination” isn’t exactly a coherent concept to begin with.
It is a “targeted concept”. This is a term I came up with as I don’t know of any better. People who defined the legal murder did not have any idea of who could be the typical murderer and who the different victim. It was not targeted for special people or special motivations, it was solely about the act. Discrimination is a targeted concept, it is targeted for the kind of behavior that arises from sentiments like racism. It does not have a really coherent definition because the kind of definition they would like to give it, “don’t do any actions motivated by racism, sexism etc.” is not appropriate in law. Note that targetedness is not inherently a right-wing critique. For example a Marxist could also try to argue that theft is a similar targeted concept because it is aimed at specific kind of situations, poor people stealing from each other or the rich, and not targeted on rich people stealing surplus value from workers. This is a bit of an artificial example though. The textbook targeted concept is Lèse-majesté, an inherently righty one. So it depends.
I don’t think the idea is that laws specifically need to prevent people from being forced to make wedding cake. Rather, wedding cakes are a single example of the more general idea “lwas have to prevent people from being forced to do things in general”. Each individual item in that category isn’t important by itself, but cumulatively they are important.
Doctors are an unusual case because doctors have a legal monopoly over prescribing drugs. If the available doctors refuse to prescribe a drug, nobody else can do it instead without violating the law. There usually aren’t legal monopolies over cake-baking.
That’s why the wedding cake example doesn’t make sense in this context.
You need special laws to regulate euthanasia.
Rather, wedding cakes are a single example of the more general idea “lwas have to prevent people from being forced to do things in general”.
The law that forces here is the Oregon Equality Act. It prevents businesses from discriminating. It’s not a law that legislates gay marriage that’s the issue.
If you want to have effective laws than you have to target the right law. If you try to fix things at the wrong spot you add additional complexity.
When it comes to doctors there are laws about malpractice that do force doctors to do certain things.
I think malpractice laws do have a right to exist but they shouldn’t be too restrictive on what doctors can do. I think euthanasia laws should be written in a way that doesn’t make it malpractice to avoid applying euthanasia.
The law that forces here is the Oregon Equality Act. It prevents businesses from discriminating. It’s not a law that legislates gay marriage that’s the issue.
A law which says that a gay marriage has to be treated like a straight marriage in one particular way is a gay marriage law. The law is just being made piecemeal and not labelled with “Gay Marriage Law” in the title, but it’s still a gay marriage law.
The original law isn’t a marriage law, it’s a gay marriage law. So you would have to describe your hypothetical as a “gay gun ownership law”. But laws other than the one being invoked already allow gay people to own guns.
Furthermore, while you describe the original situation as refusing to do business based on being gay, it’s not. It’s refusing to do business based on it being about a gay marriage. If a straight person wanted a cake celebrating a gay wedding, they wouldn’t be served either, and if a gay person wanted a cake for something else, they would; the refusal is based on the content of the message, not the identity of the customer.
Furthermore, while you describe the original situation as refusing to do business based on being gay, it’s not. It’s refusing to do business based on it being about a gay marriage.
You make a major mistake when you focus on the situation that the case is about instead of focusing on the law.
If you want feel free to argue, that the court made a mistake when it’s treated the bakery as violating the prohibition of discriminating against gay people.
Then your problem is not with the law but with the judge for interpreting the situation differently than you.
Other laws do allow gay people to own guns but a single gun salesman can refuse to serve a customer. There’s no law that requires a gun salesman to serve every customer. This law prevents him from not selling him the gun because the customer is gay.
If you want to have a reasonable discussion about politics and which laws to pass, argue about the actual laws.
If you want to have a reasonable discussion about politics and which laws to pass, argue about the actual laws.
No, the relevant discussion is about the consequences of passing the laws, and if the consequence is that the judiciary will interpret it to mean something different from what it says, that’s relevant to the discussion.
Note: part of the misunderstanding here may be that you will in a civil law country whereas the US is a common law country, and thus the judiciary here has a lot more power to interpret (or even make up) laws.
If you want feel free to argue, that the court made a mistake when it’s treated the bakery as violating the prohibition of discriminating against gay people. Then your problem is not with the law but with the judge for interpreting the situation differently than you.
Law is law whether it is made by writing a statute or whether it is made by judicial fiat. If anything, the fact that the judge’s ruling didn’t match the law on the books makes it especially obvious that the judge is actually making law.
Yes, and unfortunately in the contemporary US the idea that judges should base their decisions on what the law actually says is considered an extreme right wing position.
This is interesting. From the Wiki it sounds a bit like, when judges in the US exercise judicial activism, they tend to come up with leftier decisions than those who take the laws literally. So that this activism goes left but rarely or never right. For example, more religioius or more authoritarian or more private property oriented judicial doesn’t really exist, this is what these Wiki articles suggest. That the written law is always righttmost wall and they go only left from that. Is this a correct interpretation?
If yes, what could cause this?
For example, there was about 2-3 years ago the opposite kind of scandal in Hungary, that a female judge used language in the explanation of a decision that was more racists against the Roma minority than what is usually accepted. It is fairly logical for me that right-wing people should become judges and it is weird for left-wing people to choose such careers. It is a highly authoritarian role, you better like authoritarianism if you want to do this.
I would imagine the champion-of-le-oppressed lefties become defense attorneys and respect-mah-authority righties become judges...
I think part of it is that the law is interpreted by judges after it is written by legislators. Thus conservative judges are likely to respect the existing law. On the other hand “progressive” judges are like to consider the written law “old-fashioned”, “obsolete”, or “unacceptable in this day and age” by virtue of the fact that it was written in the past.
It is a highly authoritarian role, you better like authoritarianism if you want to do this.
It also works if you have a totalitarian “punish the class enemies” mindset.
I would have expected someone from a former Soviet satellite to be aware of this.
Yes, a but a lot of laws are already pretty liberal! Such as this anti-discrimination thing. Why doesn’t a conservative judge interpret it a way that it allows more discrimination than the liberal lawmakers wanted?
IIt also works if you have a totalitarian “punish the class enemies” mindset.I would have expected someone from a former Soviet satellite to be aware of this.
I think the Old Bolsheviks and The New Left (post-1968 “hippies”) are/were entirely different people. Consider how being gay in the Soviet Union meant 5 years GULAG. They wanted nothing of the hedonistic, permissive, autonomous, individualistic approaches of the New Left. In fact their criticism of the West sounded often similar to a religious conservative criticism, dressed up in Marxist lingo. For example I remember terms like “drugs are a symptom of the decadence of bourgeois soceties”. Translation: virtues Commie proletarians should not experiment with their brains, nor try to have exstatic fun, just worky work work and marry and have kids roughly like a good Puritan Protestant. Another slogan I remember “let’s leave pornography as the opium of the decadent West, we don’t need this”. Same logic. The root reason is that this ideology worked a lot like a pseudo-religion, see Voegelin. Of course there are aspects of a quasi-religious mindset in the New Left as well—as well as on the Right, because it is a human universal, the brain evolved so that it needs, likes, something like a religion. Sanity waterline and all that.
Irving Kristol said an interesting thing. Building on Voegelin’s idea that it all is a form of secularized Gnosticism, he said let’s look at how old Gnostics had approached sexuality: basically it was one of the two extremes: either complete chastity all life long, or orgias. The common ground is they did not care about its biological function: making kids. He said conservative orthodoxies tend towards the biological function, and thus endorse married reproductive sex as it is generally the best environment for raising children. This is a way to deal with reality while the other two extremes are to deny or change it.
But Kristol’s important idea is that a Gnostic drive can go both ways, it can be either incredibly stiff and strict or incredibly permissive. And of course Gnostics of these two types will not like each other much and are really different people! The strict Gnostic, the Cromwell-Calvin-Lenin type, will love being in a position of authority, the permissive Foucault-Marcuse-Lennon type not.
Thus back then in Soviet times the Lenin types really disliked the Lennon types and tried to keep them and their habits and ideas outside the border or inside the GULAG. This worked similar the other way around too, I remember an older British guy telling me that they had back in the 1980′s a big demonstration against Thatcherism in Cambridge. Cambridge being Cambridge, it was full of young radicals, anarchists to Trotskytes. And a girl showed up with a Soviet flag. And then a guy just walked up to her and quite simply spit on her blouse. And this shockingly rude behavior did not surprise anyone. That was how the Lennonites in the West felt about the Leninite flag.
I think the Old Bolsheviks and The New Left (post-1968 “hippies”) are/were entirely different people. Consider how being gay in the Soviet Union meant 5 years GULAG.
On the other hand their attitude towards divorce and abortion (especially in the early days after the revolution) was very similar to that of the new left. Furthermore, their reasoning was that women were the oppressed proletariat of the family, which sounds remarkably like modern social justice rhetoric.
They wanted nothing of the hedonistic, permissive, autonomous, individualistic approaches of the New Left.
On the other hand, they were perfectly willing to work with the politically. And to this day the more readical elements of the new left believe the “good guys” won Vietnam. In fact members of the new left love supporting any strict Gnostics as long as they themselves aren’t currently being subject to them. Heck these days they tend to support Islamic conservative quasi-Gnostics for lack of any actual strict Gnostics to support.
Of course, they complain about different types of decisions. Rightists complain when judges make decisions that ignore or greatly stretch the plain meaning of the law (either regular law or the constitution). Leftists complain about decisions that use the plain meaning of the law.
I agree that the laws in question are different, I would argue that the passing of those laws aren’t independent events.
Except that’s just what we have here. If say the KKK asks for a cake that depicts a black being lynched the baker is likely to refuse and is likely to be able to get away with refusing. What the law, as interpreted in practice, says is that baking a gay wedding cake is something that bakers specifically cannot refuse to do.
The laws share a similar motivation and as such aren’t independent but here the core question is whether the government can forbid private businesses that operate publically from discriminating based on sexual orientation.
In a partisan environment where everyone is mindkilled most people have likely the same opinion on that question as the question about gay marriage but that doesn’t make them the same question.
If I get treated differently at the door of a nightclub because of my gender, I don’t think that’s basis for suing the nightclub. On the other hand I expect to be treated by the government in a way that doesn’t discriminate based on gender.
By muddling those issues together, you prevent rational political discourse.
No. The law doesn’t speak about baking cakes.
Laws as supposed to be written as simple as possible.
Writing a law that says (among others): “Public businesses aren’t allowed to discriminate against homosexuals. The expectation are bakers that are asked to bake cakes for homosexual weddings.”
That’s crappy law making. If laws get written that way their complexity rises. Baking cakes for homosexual weddings isn’t important enough to be written about in a law. On the other hand euthanasia is.
In case you think I’m arguing irrelevant technicality, the fact that most people don’t understand that simple laws are good is on of the core reasons why we have so much complicated bureaucracy.
Nobody cares about low bureaucracy when debating how to solve ideological charged issues :(
The issues are already muddied, I’m merely acting on the basis of this fact.
Except that’s not how the law is being applied. A law against discrimination against gays would forbid bakers from kicking out patrons who happen to be gay. (Granted “anti-discrimination” isn’t exactly a coherent concept to begin with.)
This is similar to the difference between forbidding restaurants from putting up signs saying “no Jews allowed” and requiring all restaurants to serve kosher meals.
It is a “targeted concept”. This is a term I came up with as I don’t know of any better. People who defined the legal murder did not have any idea of who could be the typical murderer and who the different victim. It was not targeted for special people or special motivations, it was solely about the act. Discrimination is a targeted concept, it is targeted for the kind of behavior that arises from sentiments like racism. It does not have a really coherent definition because the kind of definition they would like to give it, “don’t do any actions motivated by racism, sexism etc.” is not appropriate in law. Note that targetedness is not inherently a right-wing critique. For example a Marxist could also try to argue that theft is a similar targeted concept because it is aimed at specific kind of situations, poor people stealing from each other or the rich, and not targeted on rich people stealing surplus value from workers. This is a bit of an artificial example though. The textbook targeted concept is Lèse-majesté, an inherently righty one. So it depends.
I don’t think the idea is that laws specifically need to prevent people from being forced to make wedding cake. Rather, wedding cakes are a single example of the more general idea “lwas have to prevent people from being forced to do things in general”. Each individual item in that category isn’t important by itself, but cumulatively they are important.
So, how does this apply to your comment here?
Doctors are an unusual case because doctors have a legal monopoly over prescribing drugs. If the available doctors refuse to prescribe a drug, nobody else can do it instead without violating the law. There usually aren’t legal monopolies over cake-baking.
That’s why the wedding cake example doesn’t make sense in this context. You need special laws to regulate euthanasia.
The law that forces here is the Oregon Equality Act. It prevents businesses from discriminating. It’s not a law that legislates gay marriage that’s the issue.
If you want to have effective laws than you have to target the right law. If you try to fix things at the wrong spot you add additional complexity.
When it comes to doctors there are laws about malpractice that do force doctors to do certain things. I think malpractice laws do have a right to exist but they shouldn’t be too restrictive on what doctors can do. I think euthanasia laws should be written in a way that doesn’t make it malpractice to avoid applying euthanasia.
A law which says that a gay marriage has to be treated like a straight marriage in one particular way is a gay marriage law. The law is just being made piecemeal and not labelled with “Gay Marriage Law” in the title, but it’s still a gay marriage law.
By the same token you could say it’s a gun sales law as it forbids people from refusing to sell guns to gay people based on them being gay.
The original law isn’t a marriage law, it’s a gay marriage law. So you would have to describe your hypothetical as a “gay gun ownership law”. But laws other than the one being invoked already allow gay people to own guns.
Furthermore, while you describe the original situation as refusing to do business based on being gay, it’s not. It’s refusing to do business based on it being about a gay marriage. If a straight person wanted a cake celebrating a gay wedding, they wouldn’t be served either, and if a gay person wanted a cake for something else, they would; the refusal is based on the content of the message, not the identity of the customer.
You make a major mistake when you focus on the situation that the case is about instead of focusing on the law.
If you want feel free to argue, that the court made a mistake when it’s treated the bakery as violating the prohibition of discriminating against gay people. Then your problem is not with the law but with the judge for interpreting the situation differently than you.
Other laws do allow gay people to own guns but a single gun salesman can refuse to serve a customer. There’s no law that requires a gun salesman to serve every customer. This law prevents him from not selling him the gun because the customer is gay.
If you want to have a reasonable discussion about politics and which laws to pass, argue about the actual laws.
No, the relevant discussion is about the consequences of passing the laws, and if the consequence is that the judiciary will interpret it to mean something different from what it says, that’s relevant to the discussion.
Note: part of the misunderstanding here may be that you will in a civil law country whereas the US is a common law country, and thus the judiciary here has a lot more power to interpret (or even make up) laws.
Law is law whether it is made by writing a statute or whether it is made by judicial fiat. If anything, the fact that the judge’s ruling didn’t match the law on the books makes it especially obvious that the judge is actually making law.
To have a productive discussion it’s worthwhile to be able to clarify which political decisions one agrees with and which one accepts.
Do you think that the law itself is reasonable and it’s just the judge who’s the problem?
In practice, there is no “the law” which is separate from a judge’s decisions, so that’s a meaningless question.
That’s only true if you don’t care about law making. Societies that don’t care about the laws on the books usually get pretty messed up.
Yes, and unfortunately in the contemporary US the idea that judges should base their decisions on what the law actually says is considered an extreme right wing position.
This is interesting. From the Wiki it sounds a bit like, when judges in the US exercise judicial activism, they tend to come up with leftier decisions than those who take the laws literally. So that this activism goes left but rarely or never right. For example, more religioius or more authoritarian or more private property oriented judicial doesn’t really exist, this is what these Wiki articles suggest. That the written law is always righttmost wall and they go only left from that. Is this a correct interpretation?
If yes, what could cause this?
For example, there was about 2-3 years ago the opposite kind of scandal in Hungary, that a female judge used language in the explanation of a decision that was more racists against the Roma minority than what is usually accepted. It is fairly logical for me that right-wing people should become judges and it is weird for left-wing people to choose such careers. It is a highly authoritarian role, you better like authoritarianism if you want to do this.
I would imagine the champion-of-le-oppressed lefties become defense attorneys and respect-mah-authority righties become judges...
I think part of it is that the law is interpreted by judges after it is written by legislators. Thus conservative judges are likely to respect the existing law. On the other hand “progressive” judges are like to consider the written law “old-fashioned”, “obsolete”, or “unacceptable in this day and age” by virtue of the fact that it was written in the past.
It also works if you have a totalitarian “punish the class enemies” mindset.
I would have expected someone from a former Soviet satellite to be aware of this.
Yes, a but a lot of laws are already pretty liberal! Such as this anti-discrimination thing. Why doesn’t a conservative judge interpret it a way that it allows more discrimination than the liberal lawmakers wanted?
I think the Old Bolsheviks and The New Left (post-1968 “hippies”) are/were entirely different people. Consider how being gay in the Soviet Union meant 5 years GULAG. They wanted nothing of the hedonistic, permissive, autonomous, individualistic approaches of the New Left. In fact their criticism of the West sounded often similar to a religious conservative criticism, dressed up in Marxist lingo. For example I remember terms like “drugs are a symptom of the decadence of bourgeois soceties”. Translation: virtues Commie proletarians should not experiment with their brains, nor try to have exstatic fun, just worky work work and marry and have kids roughly like a good Puritan Protestant. Another slogan I remember “let’s leave pornography as the opium of the decadent West, we don’t need this”. Same logic. The root reason is that this ideology worked a lot like a pseudo-religion, see Voegelin. Of course there are aspects of a quasi-religious mindset in the New Left as well—as well as on the Right, because it is a human universal, the brain evolved so that it needs, likes, something like a religion. Sanity waterline and all that.
Irving Kristol said an interesting thing. Building on Voegelin’s idea that it all is a form of secularized Gnosticism, he said let’s look at how old Gnostics had approached sexuality: basically it was one of the two extremes: either complete chastity all life long, or orgias. The common ground is they did not care about its biological function: making kids. He said conservative orthodoxies tend towards the biological function, and thus endorse married reproductive sex as it is generally the best environment for raising children. This is a way to deal with reality while the other two extremes are to deny or change it.
But Kristol’s important idea is that a Gnostic drive can go both ways, it can be either incredibly stiff and strict or incredibly permissive. And of course Gnostics of these two types will not like each other much and are really different people! The strict Gnostic, the Cromwell-Calvin-Lenin type, will love being in a position of authority, the permissive Foucault-Marcuse-Lennon type not.
Thus back then in Soviet times the Lenin types really disliked the Lennon types and tried to keep them and their habits and ideas outside the border or inside the GULAG. This worked similar the other way around too, I remember an older British guy telling me that they had back in the 1980′s a big demonstration against Thatcherism in Cambridge. Cambridge being Cambridge, it was full of young radicals, anarchists to Trotskytes. And a girl showed up with a Soviet flag. And then a guy just walked up to her and quite simply spit on her blouse. And this shockingly rude behavior did not surprise anyone. That was how the Lennonites in the West felt about the Leninite flag.
On the other hand their attitude towards divorce and abortion (especially in the early days after the revolution) was very similar to that of the new left. Furthermore, their reasoning was that women were the oppressed proletariat of the family, which sounds remarkably like modern social justice rhetoric.
On the other hand, they were perfectly willing to work with the politically. And to this day the more readical elements of the new left believe the “good guys” won Vietnam. In fact members of the new left love supporting any strict Gnostics as long as they themselves aren’t currently being subject to them. Heck these days they tend to support Islamic conservative quasi-Gnostics for lack of any actual strict Gnostics to support.
You know Cthulhu’s swimming habits, yes? X-D
In general, it’s common for both sides to complain about “judicial activism” (see e.g. the left about the SCOTUS decision in Citizens United).
Of course, they complain about different types of decisions. Rightists complain when judges make decisions that ignore or greatly stretch the plain meaning of the law (either regular law or the constitution). Leftists complain about decisions that use the plain meaning of the law.