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You must say that! in Arlington County:

Hans Bader reports that in Arlington County, Virginia, we're seeing another clash of competing "civil rights":

The Arlington County Human Rights Commission recently held a public hearing and subsequently investigated a Christian businessman on behalf of a gay-rights activist who claimed he wrongly "discriminated" based on "sexual orientation." Tim Bono of Bono Film and Video in Arlington County refused to duplicate two Gay Pride films for political activist Lillian Vincenz. (Vincenz once told an interviewer that "gay people .. are, in general, so much more courageous, innovative, and open to new ideas than the average straight person." . . . .

In refusing to duplicate the videos, Bono cited his desire to honor what he perceived as Biblical prohibitions against the sin of homosexual behavior. Bono Film & Video informs every potential customer that it does not duplicate material that it may deem obscene, or that may embarrass employees, tarnish its reputation, or that runs counter to the company's Christian and ethical values. . . .

Vincenz contacted Arlington County officials to get them to force Bono's private business to duplicate her materials, despite the fact that Bono objected on the basis of his religious convictions. The Arlington Human Rights Commission then ruled against Bono, ordering him to either duplicate Vincenz's films himself or pay someone else to do it for him.

See also a local newspaper account here.

I see three main problems with this ruling. First, while a county ordinance prohibits discrimination on the basis of sexual orientation in hiring and in the provision of "general public services," it is hardly obvious that the film shop has so discriminated. The shop refused to print a message it disagrees with; it did not refuse to do business with a person because of the person's sexual orientation. If a heterosexual had come to the shop requesting duplication of the same materials, I assume the shop owner would have denied the request.

Second, if the county ordinance is understood to require the business to duplicate the materials at issue, it is constitutionally vulnerable. (Note: I'm not arguing that the ordinance, interpreted in this way, would be held unconstitutional by a federal court. That's a different question than I will address here.) It seems to me that, even in the context of a commercial setting like a film shop, antidiscrimination laws that require a business owner to help others propound a message to which they object come very close to content-based, compelled speech; alternatively, it could be seen as requiring the owner to carry the speech of another, which the Supreme Court has found unconstitutional in some contexts. It's not the same as requiring Bono to recite aloud his support for the "gay agenda," as one might require a school-child to recite the Pledge, but it's just a few steps away from that. There are counter-arguments — and it has to be emphasized that this is a commercial setting, where courts have been more forgiving of speech regulation in the service of antidiscrimination law — but there's a plausible argument that the Arlington County ordinance would be unconstitutional as applied in this way.

Third, beyond these purely constitutional considerations, applying antidiscrimination law in this way is peculiarly bad policy because it harms free-speech values while doing little to advance core antidiscrimination values. In other cases where business owners want to discriminate (e.g., in employment), at least the connection to important and core antidiscrimination values is apparent. Here, the antidiscrimination law is actually operating to require the person to contribute to messages she dislikes. In contrast to the employment context, where I believe the antidiscrimination value is at its height and the "speech" interest is relatively lower, here the speech interest in refusing to facilitate objectionable messages is high, while the antidiscrimination value is relatively lower (if implicated at all). The antidiscrimination law, applied in this way, is really a speech regulation in a way that seems much more obvious and intuitive than in the employment context.

Imagine a principled application of a county ordinance that forbids discrimination in "services" on the basis of, say, "race, religion, and sexual orientation." Yes, the Christian film shop owner will have to copy the gay-rights documentaries. A victory for gay rights and equality, we might think. But the gay film shop owner will have to copy "God Hates Fags" posters for the fundamentalist minister protesting at the next funeral for a servicemember or a hate-crimes victim.

What makes the case even more compelling as an abuse of antidiscrimination law is that it's being applied to a mom-and-pop shop run by a small proprietor. We're not talking Kinko's here. So even if we worried that there might be some harm to speech values (e.g., the dissemination of unpopular ideas) if large printing companies refused to copy material on the basis of "moral" objections to its content, that concern is not present in this case.

Hard cases arise when business owners deny other kinds of services to people on the basis of some moral objection, as when the pharmacist working for a large national chain refuses to fill a prescription for contraceptives. I won't try to resolve those cases now. But the Arlington County case does not, to me, seem like a very hard one.

parkingtickets:
As a resident and parking scofflaw living in Arlington, this really doesn't suprise me,... unfortunately. Look, I'm a card carrying member of the Democratic party, and an ardent believer in equal rights, but if a man doesnt want to dub a tape of homosexuals, why can't he be allowed to abstain from doing so?
5.4.2006 2:25pm
Porkchop (mail):
I live in Arlington, too. There is an amazing collection of busybodies in the county ready to right any perceived wrong to anyone, but ACHR decisions are not self-enforcing: According to the County website:


"If necessary, however, the Commission can, with County Board approval, seek enforcement of its decisions in court."


There's a lot of silliness in the county, but I don't think that even OUR county board would let this one go to court. The County Attorney will probably advise them that there are significant constitutional issues. People will scream, and then it will die a quiet death.

The real power of the ACHR is that it is there -- someone complains, you have to deal with it, and the pain-in-the-ass factor (and maybe some bad publicity) eventually leads to a "resolution" of sorts.
5.4.2006 2:35pm
noahr (mail) (www):
interesting... the law does seem problematic. Seems like there is a concern that the second and third arguments in this post would apply equally well to the proposed law that (in part) would prevent internet providers from discriminating on the basis of the content of websites. This is a very similar situation.
5.4.2006 2:36pm
black bellamy:
Well, if they have no enforcement power I don't see why anyone even pays attention to this body. ANYONE can seek enforcement of one's decision by a court, so what? I don't understand why ACHR mail was even opened.
5.4.2006 2:38pm
noexcuse (mail):
Where is the tolerance? Why can we embrace each other's differences? Oh, that's right, liberals are only tolerant of the views that conform to their thinking.
5.4.2006 2:39pm
Houston Lawyer:
Since many people who disapprove of homosexual activity claim do so on the basis of religious teachings, the enforcement of "gay rights" will often clash with first amendment rights. Free exercise of religion is guaranteed by the First Amendment. I don't see how a right expressly guaranteed by the Constitution can be trumped by a right that is not.
5.4.2006 2:48pm
Daniel Chapman (mail):
Your best argument by far is that this is not discrimination against a homosexual person. It is discrimination against a pro-homosexual rights political message. If this person had wanted copies of home movies of his kids, there wouldn't be a problem.
5.4.2006 2:53pm
Mike BUSL07 (mail) (www):
There is not a chance that this is anything but subject matter regulation. I'm sure that if Bono was approached by Nazis, exercising *their* right to free speech, and turned *them* down, no one would have raised a stink. But gays are, after all, the left-wing cause celebre, and dimwitted county-level functionaries are just blinkered enough on this kind of thing to pursue to its glorious end, (they won't even get to summary judgment).
5.4.2006 2:53pm
HLSbertarian (mail):
It seems to me that the bigger problem isn't this ruling, which mostly likely never stand. The bigger problem is: Why should people who don't want to deal with certain others get more protection if they claim God told them so and less protection if they do so according to non-religious philosophical beliefs?

If I were a print shop owner, I'd do my very best not to, say, print Communist propaganda. Should my refusal be less protected because I can't support my position with Bible quotes? It's times like these I wish Lochner were good law.
5.4.2006 3:01pm
SteveW:
Would the analysis change if the county had an ordinance prohibiting discrimination on the basis of religion and the Christian film shop owner refused to dub a tape recording of a Bar Mitzvah because the shop owner objected to the Jewish religion? I don't think the analysis would change with regard to the free speech issue. I realize the case I describe would also implicate federal statutory law and the free exercise clause, but I'm ignoring those law for purposes of discussion.
5.4.2006 3:08pm
DClawer:
Houston Lawyer: the Free Exercise clause clearly doesn't grant exceptions from generally applicable laws. See Employment Division v. Smith, 494 U.S. 872 (1990).

Dale's first point is well taken, and appears to be a winner in a challenge based on statutory construction, but this is a more difficult constitutional issue. It's a real stretch to say it's impermissible to force someone to duplicate films because it somehow forces them to endorse a message, but that it's okay to (for example) force a restaraunt owner to seat a mixed-race couple.
5.4.2006 3:19pm
Tom Anger (mail) (www):
Arlington County's stance on the issue is a great argument for being able to vote with one's feet. But in order for that to work, municipalities have a free hand in regulating (or not regulating) the conduct of their residents. That is, State and federal governments would have a minimal role: defense, crime-fighting (above the local level), and assuring free trade across all internal boundaries. Those who want to live among the brown-shirts of Arlington would be free to do so, but those who want more liberty in their lives would be able to live in more congenial locales. For more on what I call "true federalism," go here.
5.4.2006 3:20pm
Hemingway:
Discrimination on the basis of sexual orientation isn't illegal in Virginia, so I don't think there's much chance of them going to court.
5.4.2006 3:21pm
great unknown (mail):
Hemingway:
If discrimination on the basis of sexual orientation is not illegal in Virginia, then on what basis did the Commission rule? Do they have quasi-legislative powers, or is their decision totally illegal?
5.4.2006 3:25pm
Hans Bader (mail):
The County Code may itself be illegal under the Dillon Rule.

Under Virginia's Dillon Rule, local governments have very little power to adopt regulations, much less regulations binding on private parties.

Generally, that is interpreted to foreclose local governments from including classifications not mentioned in state law -- such as sexual orientation -- in antidiscrimination ordinances.

The Virginia Supreme Court didn't even let Arlington County take the perfectly reasonable step of giving domestic partner benefits to gay public employees (which the County justified as a way of attracting qualified gay employees), citing the Dillon Rule.

Given that, it's hard for me to imagine why the Virginia judiciary would let Arlington take the patently UNreasonable step of forcing a private business owner to produce videos of a particular content, when it won't let the County take the much more modest step of accommodating the interests of its own gay public employees.
5.4.2006 3:33pm
Porkchop (mail):

"dimwitted county-level functionaries"


Actually, they are unpaid volunteer citizen-appointees. Virtually all commissions, committees, and boards operating in the county are composed of volunteers. Arlington County is close to the top nationally in the percentage of residents holding postgraduate degrees (as of 2000, 60.2% of adults held at least a bachelor's degree; another more recent survey showed 22% held a post-greduate degree), so it is a bit of a reach to describe them as dimwitted -- the pool of potential volunteers is fairly well educated.

Of course, you have to be interested in the subject matter of a commission or board before you volunteer, and most people with an interest have a bias, so sometimes things get a little out of hand. If you think this situation is far-fetched, though, you should hear some of the statements made by members of the [land-use] Planning Commission and the Board of Zoning Appeals.

Dimwitted? No, generally not. Biased to the left? Fairly frequently.
5.4.2006 3:35pm
Alex R:
While I'll agree with Dale Carpenter that this case is an easy one in favor of the video shop owner, I can also see cases where the "common carrier" nature of a business means that they *shouldn't* be allowed to discriminate based on the content of a message.

The clearest example would be a telephone company: We would be pretty outraged if the local phone company refused to carry telephone calls that carried pro-homosexual messages. The line starts to get a little fuzzier for something like an Internet service provider, but it still seems as though a broadband ISP should not be allowed to shut down a pro-gay-rights website -- or, as a Canadian ISP did -- block customer access to a website set up by the union that represents its employees.

"Common carriers" like telephone companies or ISPs make a trade: they forgo the right to make content-based decisions about the messages they carry in exchange for avoiding liability for the content of those messages. (I am aware that ISPs may not legally be common carriers, but also believe that broadband ISPs, which are near-monopolies, should be effectively treated as such.)
5.4.2006 3:40pm
Rational Actor (mail):
MikeBUS -
I get your point. Because gays are the left-wing cause celebre, and only the leftists raise stinks about things, Bono was criticized, but
because Nazis are the current right-wing cause celebre, they don't enjoy the same protection.
5.4.2006 3:57pm
Randy R. (mail):
And if the video owner refused to make copies of tapes of a black couple because he is racist, or a wedding of a black man to a white woman, I assume everyone here would say that's okay, right?
5.4.2006 4:09pm
Clayton E. Cramer (mail) (www):
Randy R. writes:

And if the video owner refused to make copies of tapes of a black couple because he is racist, or a wedding of a black man to a white woman, I assume everyone here would say that's okay, right?
Sure, and for the same reason that he would be within his rights to turn down a job duplicating a tape of a KKK rally.

It may be a hard concept for you to get, Randy, but freedom from government telling you who to have sex with also implies freedom from government telling other people that they have to approve of your choices.

I won't ask the government tell you what adults you can have sex with in private; I expect you to grant me the freedom to be able to tell you that I don't approve. This is why homosexual activism and minimal government are fundamentally contradictory; the gay activists are terrified not of oppressive government as bad in principle; they just want to make sure that they are in control of the levers of oppression.
5.4.2006 4:16pm
Ari:
RandyR:

Your flippant comment and generaliztion of VC takes away from the very nature of discussion.
5.4.2006 4:16pm
Tom Anger (mail) (www):
And if the video owner refused to make copies of tapes of a black couple because he is racist, or a wedding of a black man to a white woman, I assume everyone here would say that's okay, right?

Speaking for myself: Yes. It's the video-store owner's business.

I have the same view about hotels and restaurants, by the way. Arlington County's stance on the video issue is simply an extension of the "accommodation" provisions of the Civil Rights Act. It's one thing to forbid governments from discriminating (as in the case of segregated schools and denial of voting rights), it's quite another thing to require private citizens not to discriminate.
5.4.2006 4:22pm
Mike BUSL07 (mail) (www):
Rational Actor,

Aside from your generally pejorative tone, I have no idea what you said, but I'll be happy to address your statement if you were to rephrase it in a way that made it reasonably understandable. Cheers.
5.4.2006 4:28pm
BobN (mail):

levers of oppression


You vill duplicate dis film!

Oh, the suffering...
5.4.2006 4:29pm
Martin Grant (mail):
So I guess the closest analogy I can come up with, is kicking someone out of my resteraunt because I don't like the message on the T-shirt he's wearing.
5.4.2006 5:00pm
HLSbertarian (mail):
BobN: You're right. He should just be thankful the magnanimous board didn't order him locked away or have his business nationalized (countyized?). THAT would be oppressive. This micromanagaement of personal association by people who have nothing better to do is just the price of a free society.
5.4.2006 5:03pm
Porkchop (mail):

Arlington County's stance on the video issue is simply an extension of the "accommodation" provisions of the Civil Rights Act.

Of course, unlike Congress, Arlington County has no power to regulate public accommodations under the Commerce Clause; the only authority it has is that expressly provided by the Commonwealth of Virginia. While the county ordinance creating the Human Rights Commission and the ordinance the Commission seeks to enforce may flow logically from protections provided under the federal Civil Rights Act, it does not flow legally from them.
5.4.2006 5:04pm
HLSbertarian (mail):
Martin Grant said: "So I guess the closest analogy I can come up with, is kicking someone out of my resteraunt because I don't like the message on the T-shirt he's wearing."

How about not serving someone because he ordered something not on the menu?
5.4.2006 5:05pm
Malvolio:

Arlington County is close to the top nationally in the percentage of residents holding postgraduate degrees (as of 2000, 60.2% of adults held at least a bachelor's degree; another more recent survey showed 22% held a post-greduate degree), so it is a bit of a reach to describe them as dimwitted -- the pool of potential volunteers is fairly well educated.


educated != smart

I would cite this very case as an example, but there are many others.
5.4.2006 5:06pm
Martin Grant (mail):

How about not serving someone because he ordered something not on the menu?


I don't think that analogy is very good. An item not on the menu is fundamentally different as it will require different ingredients and preparation than is normally serviced. In this video case the person was requesting something that requires no difference is service than is normally provided.

It's more about refusing to do business with someone who's message you don't agree with.
5.4.2006 5:26pm
Hoosier:
Malvolio--I have to agree with you. Orwell was right on this one: Some things are so stupid, only an intellectual would think them.

Unfortunately, I see it every day.

Still, that doesn't mean that the functionaries are dimwitted. I don't see any evidence of that in the story, in any event. It is just a bad choice to pursue the store owner in a case like this.
5.4.2006 5:27pm
Bruce Wilder (www):
the "accommodation" provisions of the Civil Rights Act run parallel to common law requirements regarding general public accomodation.

There's an old joke about freedom of the press belonging exclusing to those with a press. Here's a video duplicator making that claim: "if I duplicate your video, then your video's message is my message." To uphold a 1st Amendment claim by the duplicator against a customer making a public accomodation claim is practically equivalent to saying the duplicator has rights that the customer does not.

Now if the duplicator were publishing a video, as opposed to duplicating videos as a free market service, there would be no question that, as a video publisher, he had 1st amendment rights. But, that's not this case.

If we start making (any, but the most limited) exceptions to anti-discrimination laws, on the basis of what the discriminator chooses to believe, then we might as well not have anti-discrimination laws. You cannot discriminate, except if you believe discrimination is right in the circumstances. What kind of stupid, pointless rule, would that be?

As for the assertion that the duplicator is discriminating against the inanimate video and not the person, that's a distinction without much merit. The business owner intends to discriminate against gay people being gay people; even if the customer in front of him is, in fact, straight, by refusing to duplicate gay content because it is gay, he intends to burden being gay in the society. That is the essence of discrimination, which the law is intended to discourage.
5.4.2006 5:30pm
EricK:
Actually, they are unpaid volunteer citizen-appointees. Virtually all commissions, committees, and boards operating in the county are composed of volunteers. Arlington County is close to the top nationally in the percentage of residents holding postgraduate degrees (as of 2000, 60.2% of adults held at least a bachelor's degree; another more recent survey showed 22% held a post-greduate degree), so it is a bit of a reach to describe them as dimwitted -- the pool of potential volunteers is fairly well educated.

Of course, you have to be interested in the subject matter of a commission or board before you volunteer, and most people with an interest have a bias, so sometimes things get a little out of hand. If you think this situation is far-fetched, though, you should hear some of the statements made by members of the [land-use] Planning Commission and the Board of Zoning Appeals.

Dimwitted? No, generally not. Biased to the left? Fairly frequently.



Since when did an education equal basic reasoning skills or intelligence?
5.4.2006 5:38pm
Guest44 (mail):
Certainly there are some things the law would say Bono can't duplicate - such as child porn or copyrighted material. So he at least has to peek at the contents. It doesn't make sense to me to impose a "if not forbidden then mandatory" rule; there's got to be some discretion between forbidden service and forbidden refusal of service. That's just the normative view, ignoring the local government and state law aspect. I also agree that the defense shouldn't turn on religion - the discretion should be based on individual liberty rather than religious liberty.




Practically, the commenters above seem right. First, this isn't self-executing. Second, this will not get far in Virginia. As mentioned above, the state supreme court didn't even allow Arlington to extend health benefits to the domestic partners of county employees because it came too close to the gay marriage debate. They would easily invalidate an enforcement action from this commission under Dillon's Rule.
5.4.2006 5:47pm
Alex F:
"Hard cases arise when business owners deny other kinds of services to people on the basis of some moral objection, as when the pharmacist working for a large national chain refuses to fill a prescription for contraceptives."

What exactly makes this such a hard case?
5.4.2006 5:51pm
HLSbertarian (mail):
Martin Grant said: "I don't think that analogy is very good. An item not on the menu is fundamentally different as it will require different ingredients and preparation than is normally serviced. In this video case the person was requesting something that requires no difference is service than is normally provided.

"It's more about refusing to do business with someone who's message you don't agree with."


Very well, is the restaurant required to give me the sauce on the side? It's good for business for them to accomodate me, but I'd hardly expect the government to burst in and make them. This man's business is reproducing films that don't promote certain things, like homosexuality. Is he required by law to perform any service that wouldn't force him to purchase different equipment or change his methods?
5.4.2006 5:51pm
Jim Manley (mail) (www):
HLSbertarian:

This micromanagaement of personal association by people who have nothing better to do is just the price of a free society.


Are you serious? This is the price we pay for living in an *unprincipled* free society and is in fact counter to the very notion of freedom. If freedom were actually our guiding principle false distinctions resting on the "public" nature of certain private activities would be recognized as meaningless. As long as the "levers of oppression" are functioning we are only marginally free -- and then only at the pleasure of those in control.

A principled view of the issue would be to acknowledge that rights do not conflict. Vincenz has no more "right" to Bono's property than a mugger has the "right" to your bag. Bono has the right to use his video shop in any way he sees fit, provided he does not impair anyone else's right. "[T]o secure … rights, Governments are instituted among Men." Unless Arlington County is enforcing a right, it has no authority to act. By taking action against Bono, the County's decision makers show that they fundamentally misconceive the nature of rights.

Another way to look at the anti-discrimination law is to recognize that the right to discrimination is inherent in the notion of property - it is the most basic in the bundle of rights that define property. Thus supporters of this law would have two options: support anti-discrimination laws and forsake property, or the converse.

Truth cannot be ignored when it becomes inconvenient, unless you never intend to reference truth again. That is the course Arlington County has taken. I do not pity those who fail to understand that actions have consequences and that reality is unavoidable.

"Few men desire liberty; most men wish only for a just master."
- Sallust
5.4.2006 5:52pm
HLSbertarian (mail):
Jim Manley: Um, sorry, it was sarcasm, in resposne to BobN's post above. I was hoping the screename would let me pull it off without a label.

PS: Some excellent points.
5.4.2006 5:56pm
BobN (mail):

Jim Manley: Um, sorry, it was sarcasm, in resposne to BobN's post above. I was hoping the screename would let me pull it off without a label.


I was just making jest of Clayton's leap to "oppression". Surely you found it a bit over-the-top, too, no?

Personally, I think the customer should have taken her business elsewhere and let it be known why she was turned away.
5.4.2006 6:02pm
Guest44 (mail):
As sympathetic as I may be to Jim Manley's points, I fear you have not done anything more than restate your conclusion. You can't deny that the County itself (or the state, depending on your point of view) has contributed in some ways to Bono's store - basically, everything in its police power, including zoning, county services, and security. I don't find your vision of Bono's store--an island, unconnected to the county--very satisfying.

As I said a few posts above, however, this thing will be dropped or stopped before long.
5.4.2006 6:06pm
Porkchop (mail):
Malvolio &EricK:

First of all, you misconstrue my post. Second, this is not the action of people who simply don't understand the opposing point of view -- they disagree with it. Doing something that you disagree with does not make them stupid. They have an agenda, and they were "smart enough" to put themselves in a position to do something about it.

Are all holders of advanced degrees inevitably able to perceive and reason more acutely than those without? No. But, at the same time, remaining uneducated does not somehow increase that ability either. Sometimes, education really is worthwhile.

Are you arguing that willful ignorance would provide us with a better decisionmaking process? I've met my share of educated dunces, but I've met even more uneducated ones. I'll take my chances with the more educated ones in most matters, thank you very much.
5.4.2006 6:46pm
dk:
Folks, no one has discerned the high probability that this bitch knew Bono's views and wanted to provoke and harass him.
A setup, in other words.
5.4.2006 6:48pm
Martin Grant (mail):
HLSbertarian says

Very well, is the restaurant required to give me the sauce on the side? It's good for business for them to accomodate me, but I'd hardly expect the government to burst in and make them.

You seem to believe I've taken a position. All I've done is pick a simple analogy (hopefully that waters a little less muddy) that I think fits. And by your second post, you seem to agree with an air of indifference.

However, if this analogy makes you uncomforable perhaps you should examine your own position a little closer.

Should a store proprieter be allowed to kick patrons out of his store, because they are wearing a T-shirt that says, "God hates Homosexuals" or "Rainbow Power"?
5.4.2006 6:53pm
HLSbertarian (mail):
Martin Grant: I don't know what your position is. You put an analogy out there. I thought that it missed the core issue (if not legally, than at least philosophically) because I don't believe the core freedom at stake here is expressive, it's associational.

To me, the issue isn't that Bono refused to provide a service to someone who happened to be espousing an opposing viewpoint (your t-shirt in the restaurant example), it's that Vincenz was demanding a service from Bono's business that Bono doesn't want to provide.

As has been pointed out above, the line between the two isn't always clear, but it's not nonexistent, at least not unless you accept Bruce Wilder's proposal to condemn any actions that "burden being gay in the society."
5.4.2006 7:07pm
HLSbertarian (mail):
And to answer your question: "Should a store proprieter be allowed to kick patrons out of his store, because they are wearing a T-shirt that says, "God hates Homosexuals" or "Rainbow Power"?"

I think, unquestionably, yes. And I believe that in many places he could, but the more seasoned lawyers should answer that one.
5.4.2006 7:12pm
Aebie:

How about not serving someone because he ordered something not on the menu?


You mean as in (paraphrased):

A: I'd like some toast.
B: We don't serve toast.
A: Then I'll have a chicken salad sandwich. Can I get that on toasted white bread?
B: Sure
A: Okay, I'll have a chicken salad sandwich on toasted white bread, and hold the tomato.
B: Okay, a chicken salad sandwich on toast, hold the tomato.
A: And hold the lettuce and mayo, too.
B: Chicken salad on white toast, hold the tomato, lettuce and mayo. Anything else?
A: Yeah. Hold the chicken salad and just bring me the toast.
5.4.2006 7:21pm
HLSbertarian (mail):
OK, now the analogy has just gone from being moderately useful to making me very hungry.
5.4.2006 7:26pm
Daniel Chapman (mail):
Guest44: Zoning laws and police protection do not make state action. If they did, state action would be all encompasing.

What was that stupid case about the resturaunt in the government-owned building again?
5.4.2006 7:53pm
Guest44 (mail):
I wasn't saying that zoning laws are state action (for 14th A or something). I was saying that zoning and other exercises of police power--many of which assist Bono and other businesses--show that Bono does not operate in a vacuum. Specifically, I was reacting to this:


Unless Arlington County is enforcing a right, it has no authority to act. By taking action against Bono, the County's decision makers show that they fundamentally misconceive the nature of rights.


I think it's deeper than that. The County and Bono are connected more deeply than that. In the end, I agree with the conclusion--the board's rules and judgment are wrong--but I think it's more complicated than that post indicated.
5.4.2006 7:59pm
Bored Lawyer:
Dale Carpenter cites one reason why this is not discrimination -- it is the content of the video, not the character of the person which caused the refusal.

But there is another reason why it is not discriminatory. "Bono Film &Video informs every potential customer that it does not duplicate material that it may deem obscene, or that may embarrass employees, tarnish its reputation, or that runs counter to the company's Christian and ethical values. . . . " IF the film contains what is typically seen on "Gay Pride" films -- public nudity or near nudity, sexually provocative public displays -- then it would likely have been considered obscene by the owner even if it showed heterosexuals doing the same thing. IOW, it's the obscenity, not the homosexuality, which is at issue.
5.4.2006 11:23pm
Bruce Wilder (www):
"Bruce Wilder's proposal to condemn any actions that "burden being gay in the society."

I did not propose anything. I suggested that refusing to duplicate a video, because of its pro-gay content, constituted discrimination, even if a straight person presented herself as the immediate customer. The discriminatory intent of the particular application of the business policy ought to be considered dispositive.

If there is going to be a government policy on discrimination in business dealings, it ought to be enforced, and not neutered by a lawyer's trick. Nor should it be rendered moot, by an arch reading of what constitutes one's ethical obligations in following a religion.

Arguments about whether anti-discrimination laws violate anyone's rights to free association or property rights are really just arguments about whether there ought to be anti-discrimination laws, such as the ones we actually do have.
5.5.2006 3:48am
gadlen (mail) (www):
So who is going to call the ACLU?

I would but I live very far from this ridiculousness so my involvement would be difficult.
5.5.2006 4:53am
centerer:
From the title of this post, I assumed it was by David Bernstein and accordingly skipped over it. Only later did I realize it wasn't.
5.5.2006 9:00am
Thorley Winston (mail) (www):
Since many people who disapprove of homosexual activity claim do so on the basis of religious teachings, the enforcement of "gay rights" will often clash with first amendment rights. Free exercise of religion is guaranteed by the First Amendment. I don't see how a right expressly guaranteed by the Constitution can be trumped by a right that is not.


I don't think it's so surprising that it happened, just that it happened outside of the Ninth Circuit.
5.5.2006 1:04pm
Thorley Winston (mail) (www):
First, while a county ordinance prohibits discrimination on the basis of sexual orientation in hiring and in the provision of "general public services," it is hardly obvious that the film shop has so discriminated. The shop refused to print a message it disagrees with; it did not refuse to do business with a person because of the person's sexual orientation. If a heterosexual had come to the shop requesting duplication of the same materials, I assume the shop owner would have denied the request.


I'd wager you're right considering that KD Lang is featured rather prominently on their client list.
5.5.2006 1:21pm
Charlie B (mail):
It is a good thing the New York Times is not the Arlington Times as the Times refuses to print all kinds of ads they object to.
5.7.2006 1:17am