Do Public Accommodations Laws Violate Free Speech and Free Exercise Rights?

[Nous]

Though I am against gay weddings, if a guy came into a store to ask for a normal looking cake, said it was for a wedding, and provided no details, then they should have made the cake.

What's a "normal-looking" wedding cake?

In public accommodation laws that include sexual orientation as a protected basis, it's discrimination to refuse to provide the services to a same-sex couple as you would and do provide to different-sex couples. It sounds like you're trying to find a way to violate the law.

 

[esmith]

The first sentence of the text of the bill begins: “(a) Notwithstanding any provision of the law of any State or political subdivision thereof . . ." So, if that bill were to pass, a state that doesn't already have a law that does not recognize another state's CCW law can merely pass a law that refuses recognition of another state's CCW laws, and the "right" that you are referring to disappears in that state that does not recongize the other state's CCW law.

I do believe you are reading it wrong. The bill says:
"This bill amends the federal criminal code to allow a qualified individual to carry a concealed handgun into or possess a concealed handgun in another state that allows individuals to carry concealed firearms."
The key words are if a state allows concealed carry, of which all States and the District of Columbia do, then they can not deny the rights of a citizen of another State to carry a concealed weapon .Wish you would read and understand the law. Some States, at the present time, do not recognize a CCW permit from another State, for example the State of Oregon. Therefor your argument is mute since those laws do now exist. Any State that does not want to accept this would have to pass a law that says no concealed weapons allowed in the State. That law would then be challenged as per the ruling in Palmer v. District of Columbia, 59 F. Supp. 3d 173 (D.D.C. 2014).

From: Text - H.R.38 - 115th Congress (2017-2018): Concealed Carry Reciprocity Act of 2017
Reciprocity for the carrying of certain concealed firearms

“(a) Notwithstanding any provision of the law of any State or political subdivision thereof (except as provided in subsection (b)) and subject only to the requirements of this section, a person who is not prohibited by Federal law from possessing, transporting, shipping, or receiving a firearm, who is carrying a valid identification document containing a photograph of the person, and who is carrying a valid license or permit which is issued pursuant to the law of a State and which permits the person to carry a concealed firearm or is entitled to carry a concealed firearm in the State in which the person resides, may possess or carry a concealed handgun (other than a machinegun or destructive device) that has been shipped or transported in interstate or foreign commerce, in any State that—

“(1) has a statute under which residents of the State may apply for a license or permit to carry a concealed firearm; or

“(2) does not prohibit the carrying of concealed firearms by residents of the State for lawful purposes.

“(b) This section shall not be construed to supersede or limit the laws of any State that—

“(1) permit private persons or entities to prohibit or restrict the possession of concealed firearms on their property; or

“(2) prohibit or restrict the possession of firearms on any State or local government property, installation, building, base, or park.

 

[Nous]

I do believe you are reading it wrong. The bill says:
"This bill amends the federal criminal code to allow a qualified individual to carry a concealed handgun into or possess a concealed handgun in another state that allows individuals to carry concealed firearms."

The key words are . . .

The first rule of statutory construction: “A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant . . ." Hibbs. v. Winn, quoting Singer, Statutes and Statutory Construction §46.06, pp. 181—186 (rev. 6th ed. 2000). “It is the duty of the Court to give effect, if possible, to every clause and word of a statute . . .” Montclair v. Ramsdell (1883).

So what are you claiming is the effect that should be given to the first words of the bill: "(a) Notwithstanding any provision of the law of any State or political subdivision thereof . . ."?

 

[Akivah]

What's a "normal-looking" wedding cake?

In public accommodation laws that include sexual orientation as a protected basis, it's discrimination to refuse to provide the services to a same-sex couple as you would and do provide to different-sex couples. It sounds like you're trying to find a way to violate the law.

I'm trying to find a way to protect our religious freedoms.

An example of a normal-looking wedding cake is white with flowers on it. A gay one, that the bake shop can refuse to do, has two guys on it.

 

[Nous]

I'm trying to find a way to protect our religious freedoms.

No court has ever held that baking a cake is an activity protected by the Free Exercise Clause. No court has ever held that any public accommodations law violates any exercise of religion.

An example of a normal-looking wedding cake is white with flowers on it. A gay one, that the bake shop can refuse to do, has two guys on it.

A "gay cake"? You classify cakes according to their sexual orientation?

Do you have any grasp of the idea that public accommodation laws such as Colorado's CADA prohibit public accommodations to refuse services on the basis of sexual orientation? No court has ever held that a public accommodation law permits a bake shop to refuse to bake "a gay cake".

 

[esmith]

The first rule of statutory construction: “A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant . . ." Hibbs. v. Winn, quoting Singer, Statutes and Statutory Construction §46.06, pp. 181—186 (rev. 6th ed. 2000). “It is the duty of the Court to give effect, if possible, to every clause and word of a statute . . .” Montclair v. Ramsdell (1883).

So what are you claiming is the effect that should be given to the first words of the bill: "(a) Notwithstanding any provision of the law of any State or political subdivision thereof . . ."?

Sorry do not understand what you are trying to convey.
Simple idea behind the bill is to allow concealed carry in any state by anyone holding a concealed carry permit in their place of residence. Restrictions on where carry is allowed is permissible.

 

[Nous]

Sorry do not understand what you are trying to convey.

I asked a simple question: What effect are you giving to the first clause of the bill: "(a) Notwithstanding any provision of the law of any State or political subdivision thereof . . ."? What idea do you say that clause expresses, and where have you included that idea in your interpretation of the bill?

(Hint: you've completely ignored and dimissed that most important provision of bill. You haven't given that clause any effect whatsoever in your intepretation of the text.)

 

[tytlyf]

I guess states rights will backfire in this case.

 

[esmith]

I asked a simple question: What effect are you giving to the first clause of the bill: "(a) Notwithstanding any provision of the law of any State or political subdivision thereof . . ."? What idea do you say that clause expresses, and where have you included that idea in your interpretation of the bill?

(Hint: you've completely ignored and dimissed that most important provision of bill. You haven't given that clause any effect whatsoever in your intepretation of the text.)

I'll try. Wording of bill italicized my interpretation is in blue

a) Notwithstanding any provision of the law of any State or political subdivision thereof (except as provided in subsection (b)) and subject only to the requirements of this section, a person who is not prohibited by Federal law from possessing, transporting, shipping, or receiving a firearm, who is carrying a valid identification document containing a photograph of the person, and who is carrying a valid license or permit which is issued pursuant to the law of a State and which permits the person to carry a concealed firearm or is entitled to carry a concealed firearm in the State in which the person resides, may possess or carry a concealed handgun (other than a machinegun or destructive device) that has been shipped or transported in interstate or foreign commerce, in any State that—
1) has a statute under which residents of the State may apply for a license or permit to carry a concealed firearm; or
“2) does not prohibit the carrying of concealed firearms by residents of the State for lawful purpose
A person who has a State issued CCW permit may carry a concealed weapon in any State that meets the requirement of items 1 & 2 above except for conditions met in subsection (b) below

“(b) This section shall not be construed to supersede or limit the laws of any State that—

“(1) permit private persons or entities to prohibit or restrict the possession of concealed firearms on their property; or
allows private persons or entities to prohibit or restrict the possession on a concealed firearms on their property
“(2) prohibit or restrict the possession of firearms on any State or local government property, installation, building, base, or park.
allows the State to restrict where a firearm may be carried on State or local government property, installations, building, base, or park

That is my interpretation, what is yours?

 

[SomeRandom]

As I said, you don't get to determine the religious obligations of others.

No, but I can call them hypocrites if that is what their behavior indicates. And religious obligation? Show me where in the bible it says not to bake a cake for a couple you don't agree with. Show me an example where Jesus, the person every single Christian no matter the domination is striving to be like, would see this as acceptable behavior. Go ahead.
Religious obligations should not impose upon another person. Which is exactly what this did. If they were genuine, they would uphold the Biblical Standards for all their customers. That is religious obligation from a Christian (in general) standpoint, is it not?
I would say this no matter the religious justification. If they refused a biracial couple on the grounds that they do not believe in biracial marriages, which is a thing in certain sects, I would be rather interested to see the response from people defending them. (Not you specifically, just in general.) Because that is what they look like to us young whippersnappers.

Speaking of tantrums and stamping one's feet.

Yes, how dare I point out, hyperbolically (is that a word? Ehh, whatever) that refusing to serve a customer in retail, for anything less than said customer disturbing the peace or being abusive, is childish behavior. Come on, you know that you leave your opinions at the door when you step into work. Owner or not. A customer's life is none of the server's business. At all. Now if they wanted him to write on the cake that gay marriages are the work of God or something, maybe I could be more sympathetic to his plight. The way I see it now though, he's just being a homophobic bigot and hiding behind his religion like a coward. Simply because of a line located conveniently somewhere in the Bible.

And if they were owners they could decide to not provide porcine products. Inconvenienced by someone's religious obligations in their own store? "Harden the 'F' up".

Well it's called opening a Butcher that does not sell pork. We have those. I forget what they're called. So already they have made a conceited effort not to inconvenience customers shopping there. Because they have made it clear to the public that they don't sell certain products. Like you don't got to a Kosher Butcher and expect a non Kosher thing. (Sorry not particularly versed in Kosher anything.) Did this shop make it clear they do not serve certain types of people? No? Well then that's their fault.
Besides unlike said specialty Butchers, a cake shop bakes cakes, not straight cakes, not gay cakes. Cakes. The ingredients are all the same, the results are all the same, the products are all the same. The intent is the only thing that is different and that has nothing whatsoever to do with selling the products in the first place. I highly doubt many grocery chains, for example, would approve of kids taking certain grocery products and using them to make drugs. They could even have religious objections. We can even suspect such behavior, I mean people with such intentions are not always hard to spot. So then are they participating in the manufacturing of drugs if their customers do so? What of their immortal souls?

 

[Nous]

A person who has a State issued CCW permit may carry a concealed weapon in any State that meets the requirement of items 1 & 2 above except for conditions met in subsection (b) below

So you are recanting your earlier claim (in #116) that "if HR 38 becomes law (which I hope it does) every State and the District of Columbia must recognize a CCW permit from any State"?

Your idea that this bill, if enacted, requires all states to recognize the CCW permits of all other states was the whole crux of your claim about this bill creating a new "right". Wasn't it?

The fact remains that, if this bill is enacted, the first clause of the text ("Notwithstanding any provision of the law of any State or political subdivision thereof . . .") recognizes Massachusetts' right to prevent you from legally carrying a concealed weapon in Massachusetts, by merely having a state law that denies recognition of the CCW permits from your (and any other) state. Right?

 

[McBell]

Do Public Accommodations Laws Violate Free Speech and Free Exercise Rights?

Seems to me that far to many people think "Freedom of Speech" means 'freedom from all consequences for what they say'.

 

[esmith]

So you are recanting your earlier claim (in #116) that "if HR 38 becomes law (which I hope it does) every State and the District of Columbia must recognize a CCW permit from any State"?

Your idea that this bill, if enacted, requires all states to recognize the CCW permits of all other states was the whole crux of your claim about this bill creating a new "right". Wasn't it?

The fact remains that, if this bill is enacted, the first clause of the text ("Notwithstanding any provision of the law of any State or political subdivision thereof . . .") recognizes Massachusetts' right to prevent you from legally carrying a concealed weapon in Massachusetts, by merely having a state law that denies recognition of the CCW permits from your (and any other) state. Right?

I think you are misreading the bill.
If you would look closely at the bill at the section you are referring to as highlighted in your above post, you left out the portion that invalidates your assumption. Let's look at it again
a) Notwithstanding any provision of the law of any State or political subdivision thereof (except as provided in subsection (b))
The part that you are failing to see is that the only laws of a state that are allowed as far as CCW is those provisions in part (b) of the bill. Those stipulations are the only ones allowed. Part (b) below
“(b) This section shall not be construed to supersede or limit the laws of any State that—
“(1) permit private persons or entities to prohibit or restrict the possession of concealed firearms on their property; or
“(2) prohibit or restrict the possession of firearms on any State or local government property, installation, building, base, or park.

Your assumption that a state (you used Massachusetts) could pass a law that does not recognize an out-of-state CCW violates sections (a)
a person who is not prohibited by Federal law from possessing, transporting, shipping, or receiving a firearm, who is carrying a valid identification document containing a photograph of the person, and who is carrying a valid license or permit which is issued pursuant to the law of a State and which permits the person to carry a concealed firearm or is entitled to carry a concealed firearm in the State in which the person resides, may possess or carry a concealed handgun (other than a machinegun or destructive device) that has been shipped or transported in interstate or foreign commerce, in any State that—
1) has a statute under which residents of the State may apply for a license or permit to carry a concealed firearm; or
“2) does not prohibit the carrying of concealed firearms by residents of the State for lawful purpose

FYI this bill is basically a National Right To Carry.
Now I have done my utmost to present my case. If you disagree then you disagree. I'm done with this.

 

[tytlyf]

FYI this bill is basically a National Right To Carry.
Now I have done my utmost to present my case. If you disagree then you disagree. I'm done with this.

Correct, but state laws will Trump it.

 

[esmith]

Correct, but state laws will Trump it.

What makes you assume that? Do States have different requirements for drivers license? Do all States recognize other States drivers license. Every hear of the supremacy clause, which is part of article VI of the Constitution. Federal law wins when in the case of conflicting legislation

 

[Nous]

I think you are misreading the bill.
If you would look closely at the bill at the section you are referring to as highlighted in your above post, you left out the portion that invalidates your assumption. Let's look at it again
a) Notwithstanding any provision of the law of any State or political subdivision thereof (except as provided in subsection (b))
The part that you are failing to see is that the only laws of a state that are allowed as far as CCW is those provisions in part (b) of the bill. Those stipulations are the only ones allowed. Part (b) below
“(b) This section shall not be construed to supersede or limit the laws of any State that—
“(1) permit private persons or entities to prohibit or restrict the possession of concealed firearms on their property; or
“(2) prohibit or restrict the possession of firearms on any State or local government property, installation, building, base, or park.

Subsection (b) does not prohibit (i.e., provide an exception to the "notwithstanding" clause) any "may issue" state law. Subsection (b) does not prohibit a state from formulating its own CCW laws such as a law that requires applicants to undergo a training course or have "good cause".

The way you are intepreting something (you can't seem to point to or quote the specific words) would be blatantly unconstitutional. It would mean that all states' restrictions on CCW would be wiped out--all states would have to allow out-of-state concealed carriers from the least strict "shall issue" state law. That would certainly nullify Peruta, and it would be inconsistent with Heller.

Your assumption that a state (you used Massachusetts) could pass a law that does not recognize an out-of-state CCW violates sections (a)
a person who is not prohibited by Federal law from possessing, transporting, shipping, or receiving a firearm, who is carrying a valid identification document containing a photograph of the person, and who is carrying a valid license or permit which is issued pursuant to the law of a State and which permits the person to carry a concealed firearm or is entitled to carry a concealed firearm in the State in which the person resides, may possess or carry a concealed handgun

What I have said does not violate anything in Subsection (a), because Subsection (a) begins with the clause: "Notwithstanding any provision of the law of any State or political subdivision".

It is you who is refusing to give effect to that clause. Obviously with your interpretation of the bill, you cannot say (and have not said) what effect that clause has on anything.

Political subdivisions in Massachusetts (and other states) have different rules for what constitutes "good cause". Under your interpretation of the bill, those differing rules would be nullified. But it is precisely such differing rules that the "notwithstanding" clause refers to as one of those laws that this bill's provisions are notwithstanding (i.e., do not nullify).

FYI this bill is basically a National Right To Carry.
Now I have done my utmost to present my case. If you disagree then you disagree. I'm done with this.

You don't have to take my word for it. Ask the NRA or the bill's author.

 

[esmith]

You don't have to take my word for it. Ask the NRA or the bill's author.

I did say no more discussion, but you asked. So here is the NRA on both the Senate and House Bills.
NRA-ILA | Cornyn Introduces the “Constitutional Concealed Carry Reciprocity Act of 2017” in the Senate
As with Hudson’s bill, Cornyn’s legislation would ensure that individuals with a valid concealed carry permit or who are otherwise legally eligible to carry in their states of residence could travel interstate while carrying a concealed handgun for self-defense or other lawful purposes. Rules of behavior for carrying firearms in each state would continue to apply.

NRA-ILA | NRA Backs Concealed Carry Reciprocity Bill in U.S. House
"This legislation would eliminate the confusing patchwork of state carry laws by allowing individuals who possess concealed carry permits from their home state or who are not prohibited from carrying concealed in their home state to exercise those rights in any other state that does not prohibit concealed carry."

 

[Nous]

NRA-ILA | NRA Backs Concealed Carry Reciprocity Bill in U.S. House
"This legislation would eliminate the confusing patchwork of state carry laws by allowing individuals who possess concealed carry permits from their home state or who are not prohibited from carrying concealed in their home state to exercise those rights in any other state that does not prohibit concealed carry."

You should have read the whole article:

This legislation would not override state laws governing the time, place or manner of carriage or establish national standards for concealed carry. Individual state gun laws would still be respected.​

The law would not change a "may issue" state into a "shall issue" state.

Contrary to your claim, the law would not require that "every State and the District of Columbia must recognize a CCW permit from any State".

 

[Akivah]

No court has ever held that baking a cake is an activity protected by the Free Exercise Clause. No court has ever held that any public accommodations law violates any exercise of religion.

A "gay cake"? You classify cakes according to their sexual orientation?

Do you have any grasp of the idea that public accommodation laws such as Colorado's CADA prohibit public accommodations to refuse services on the basis of sexual orientation? No court has ever held that a public accommodation law permits a bake shop to refuse to bake "a gay cake".

Once Trump appoints sane judges to the Supreme Court, we can get the travesty of gay marriage over-turned. Then this whole case will be moot.

 

[Mister Emu]

So what are you claiming is the effect that should be given to the first words of the bill: "(a) Notwithstanding any provision of the law of any State or political subdivision thereof . . ."?

I just went and read a few legal "blogs" on the matter of the use of "Notwithstanding"(they seemed to be centered on contract law) in order to do a cursory check that there wasn't a legal definition that differed significantly from the normative usage in common language. Notwithstanding is a subordinating clause. 'Notwithstanding any provision of the law...' means in spite of any laws of the indidvidual states (or their subdivisions), subordinating them to this law. This is direct contrast to your claim that it would allow states or their subdivisions to pass laws that would deny this bill. See: The Vices And Virtues Of "Notwithstanding" - Corporate/Commercial Law - United States for one of the resources I perused.

The way you are intepreting something (you can't seem to point to or quote the specific words) would be blatantly unconstitutional.

Granting that that is the case, and the bill as interpreted by @esmith is unconstitutional, that doesn't necessarily mean that esmith's interpretation is incorrect; unconstitutional legislative acts do happen, and they are then challenged in court.