June 2, 2017

"Our gay bars have long said that you do not exclude people because they’re gay or straight or transgender — you just can’t do that for any reason."

”We have to deal with the bachelorette parties that come to the gay bar. They’re terribly disruptive, but if you forbid women from coming to a gay bar, you’re starting down a slippery slope. It’s discrimination."

Says lawprof Stephen Clark — who says he is "a gay man, and I’ve studied and taught gay rights for years" — who filed an administrative charge against the Alamo Drafthouse for its women-only showings of "Wonder Woman," discussed at WaPo in "Why a gay law professor is trying to shut down women-only ‘Wonder Woman’ screening."

I haven't taken a legal position on this matter, and I explained why here. But I'm very interested in Clark's perspective, shaped by the annoyance of bachelorette parties in gay bars.*

When the historically disadvantaged group creates a special space for expressive purposes — even in a commercial setting like a bar or theater — aren't you sympathetic to its interest in preserving the benefits of the culture it has created? It's not the government. It's a private business. I'm not purporting to interpret the municipal law of Austin, Texas, only to discuss our principles of equality and freedom of association and expression.

________________________

* Maybe gay bars shouldn't be putting up with bachelorette parties! How about some lateral thinking? Clark seems to be implying that places he (or his friends) might wish would be exclusionary have stuck to a principle of nondescrimination and therefore other places should have to follow the same principle. But maybe he ought to consider whether gay bars are unnecessarily hurting themselves by not banning bachelorette parties.

116 comments:

Anonymous said...

Althouse says: "[A]ren't you sympathetic to their interest in preserving the benefits of the culture they created? It's not the government. It's a private business."

Wouldn't your point also support the owner of the lunch-counter in the South in the 1950s? Public accommodations must be open to the public, regardless of race or gender, correct?


Scott M said...

It's not the government. It's a private business.

So was the baker. So was the wedding photographer. Seems like that (in legal terms, not the arena of social outrage) all hinged on whether or not the business in question was a public accommodation. Is a movie theater a public accomodation?

sean said...

How do you know who is "historically disadvantaged"? Asian-Americans? Protestants? (My ancestors fled persecution in Europe with nothing but the clothes on their backs, although we've done pretty well for ourselves.) Jews? (They've done okay too.) Women who want to act up before a wedding, as men have historically done? Etc.

AMDG said...

Isn't that what Private Clubs are for?

BTW, I am sympathetic to the idea but am absolutely opposed to selective enforcement of the law.

Oh Yea said...

"It's a private business."

Like it's always been a good idea to let private businesses, like lunch counters, to serve or not serve who they like.

"historically disadvantaged group" You mean the group that lives longer, graduates from college at a higher rate, has less on job site injuries...? Who is to define historically disadvantaged group

Unknown said...

Bake the cake, bigot!

I posted this on the ants and peonies thread, but since this is a gay thread I'll repost it here. The City of East Lansing, Michigan, has banned a farmer from selling his food at a farmers market. Why is he the only one banned? Because on his farm, 22 miles outside of city limits, the farmer, a devout Catholic, apparently has refused to allow a lesbian couple to get married on his property. It's unclear whether he actually denied someone, or whether this was his response to a hypothetical and no discrimination has taken place. Regardless, his food business has never been discriminatory--he sells to all.

Nevertheless, the City of East Lansing is banning him because he is "discriminating." The left is loudly applauding, as best as I can tell.

So here's the problems: What right does East Lansing have to ban the farmer for alleged actions outside their jurisdiction? Isn't this straight up religious bigotry/ "Wrong though?
Further, and most chilling: This guy's totally non discriminating business is being banned for a completely unrelated "thought crime." His food selling business has nothing to do with any wedding "crimes" or not. Yet the LGBT left has banned it anyway. Does this mean that once you are accused of being a "Bigot" the state now has the power to end all of your economic activity, regardless of whether you discriminate or not?

Remember when gay marriage would never, could never, hurt anyone? Now it's "Have the wrong thoughts, comrade, and we'll make sure you starve because you cannot work!"

Care to defend this, typical leftists?

--Vance

Dave from Minnesota said...

And the baker/photographer/florist was not barring homosexuals from their business. They just declined to do contract work/perform their art for a gay wedding ceremony.

Hear the latest? A small farm in Michigan is banned from the East Lansing farmers market because the owners believe in the 4,000 year old traditional definition of marriage.

AA, as a law professor...generally in these cases, other vendors have not been queried on their views of marriage. Unless the farmers markets sends out a questionnaire to all of their vendors asking their views on marriage, can they ban just this one vendor. For full info, this vendor was a regular seller there for years, not someone trying to get a new spot.

Ron Winkleheimer said...

My question is, why would women want to have a bachelorette party in a gay bar?

Dave from Minnesota said...

Unknown, as I was typing.....you were posting.

YoungHegelian said...

I'm sensitive to this issue in some of the ethnic restaurants I eat at in the DC area. It's not unusual for my wife & I to be the only "Uhmericans" in the place.

I've discussed the issue in the past with some restaurant owners. Their unanimous response: come on down & bring your wallet with you! But with the patrons, it's a whole different vibe, & for good reasons. When more non-ethnics show up, prices go up because the market will bear more. The non-ethnic market has different tastes & so the food starts to change to reflect their preferences. Weird-ass dishes from the old country disappear from the menu, to be replaced by blander dishes for the more generic palate. For the ethnic clientele, it's quite a loss since the restaurant is not only where they can meet & greet their own in their own language, its tastes also provide a link to "back home"

My wife & I call our presence in such venues "bringing down property values".

Ann Althouse said...

"Wouldn't your point also support the owner of the lunch-counter in the South in the 1950s? Public accommodations must be open to the public, regardless of race or gender, correct?"

That's not within the scope of the idea in the post because:

1. The excluded group is the historically discriminated against one. Moreover, the exclusion was done out of animus against the excluded group.

2. A lunch counter is not created for expressive purposes and doesn't come within ideas about expressive association.

Dave from Minnesota said...

Ron, that was a thing with gay bars in Minneapolis. The white girls love the gay scene. They are so festive and fun. So when we didn't have gay marriage, the homosexuals were getting pissed at the 20 somethings coming to their bars for their bachelorette parties. Partying it up for their weddings, while they gays didn't have legal marriage (well, they did, but not to someone of the same sex).

Gahrie said...

I haven't taken a legal position on this matter, and I explained why here.

What you didn't admit, is that the law clearly and explicitly prevents what the theater is doing....but feelz. If the law makes women unhappy, it must be ignored.

When the historically disadvantaged group creates a special space for expressive purposes — even in a commercial setting like a bar or theater — aren't you sympathetic to its interest in preserving the benefits of the culture it has created?

No. Because the "culture" it is expressing is based on illegal discrimination and is a modern form of segregation.

But maybe he ought to consider whether gay bars are unnecessarily hurting themselves by not banning bachelorette parties.

Maybe bakers should consider whether bakeries are unnecessarily hurting themselves by not refusing to bake wedding cakes for gay weddings? That's different...right?

Bars can ban patrons but bakers can't refuse commissions?

rehajm said...

historically disadvantaged group

Greased pig slippery.

Ann Althouse said...

"My question is, why would women want to have a bachelorette party in a gay bar?"

Reverse engineer this. You know that it is true that these things happen. There are women who do this. What sort of women would they be?

I'd just have to guess. I've never even been to any sort of bachelorette party, so it's hard for me to picture women even wanting to do that. I remember when what the women did before a wedding was the wedding shower.

But I assume these women are about having their own fun and not thinking much about the effect on others, and I suspect they think they are very cute and delightful, including and especially when drunk.

Just guessing!

Roger Sweeny said...

Yes, I'm sympathetic. But there's a terrible slippery slope here, which winds up: discrimination is bad and illegal when it's done by bad people for bad reasons, but it's good and legal when done by good people for good reasons.

Of course, everyone thinks they and the people they like are good people who have good reasons.

n.n said...

Homosexuals are transgender. So are bisexuals. Their sexual orientation ranges from feminine to masculine to feminine.

Bay Area Guy said...

This is a sign of a healthy, rich, peaceful society. If one is wasting time debating and then suing, on the question of whether gay bars should or should note allow bachelorette parties, well, I reckon, folks have some SERIOUS free time on their hands.

Owen said...

How about having the bars sponsor a bake-off for a Christian wedding?

rehajm said...

What happens when two historically disadvantaged groups collide?

chickelit said...

Althouse is trolling again.

Ann Althouse said...

On the cake topic.

I believe a cake baker ought to have to sell cakes without discriminating based on the sexual orientation of the customers.

But I believe the cake decorator is in the realm of expressive freedom and should have the right to decline to create custom-made cakes with messages he wants to refrain from endorsing.

Roger Sweeny said...

One of the things you lose when you are no longer an insular minority is that other people can now party on your island.

Gahrie said...

The excluded group is the historically discriminated against one. Moreover, the exclusion was done out of animus against the excluded group.

Fuck "historically". How about current discrimination? The only person it is legal to discriminate against, and in fact often mandated to be discriminated against, is White heterosexual men. Do they get any special dispensations for this? Shit no...they're the ones everyone is trying to exclude.

All exclusions are done out of animus....that's the point. (no no no..we're banning you because we like you...we just don't want to be around you)

A lunch counter is not created for expressive purposes and doesn't come within ideas about expressive association.

The expression is that you are defined by your characteristics, and we don't like yours, so we don't wish to associate with you. Or in other words explicit discrimination. But apparently discrimination is just fine and dandy as long as the "right" group is being discriminated against.

Angel-Dyne said...

"When the historically disadvantaged group creates a special space for expressive purposes, in a commercial setting like a bar or theater, aren't you sympathetic to their interest in preserving the benefits of the culture they created? It's not the government. It's a private business."

Why would sympathy for "the historically disadvantaged" extend to their having a more expansive right to freedom of association or right to privacy than other citizens?

And, as already mentioned, who gets to define what being "historically disadvantaged" is in the first place, and who qualifies? Is there a statute of limitations, or do we just save time and define everybody who isn't a straight white Christian male as "historically disadvantaged"? I'm sure there's something in the Evolving Constitution that upholds the sacred right to freedom of association, except for those guys.

I'm in favor of any group being able to "preserve the benefits of the culture they created" in private settings and via private business. I'm fine with gay bars excluding women, or "not our kind of gay", or whomever they please, up to including excluding members of any particular racial or ethnic group.

Want to be left the hell alone? Leave other people the hell alone. Don't want to leave other people the hell alone? Then get used to them making themselves as big a community-wrecking pain in the ass to you, as you are a community-wrecking pain in the ass to them.

Dave from Minnesota said...

AA, if you go to a larger city trendy bar district.....the bachelortette parties are quite annoying. When you had your wedding shower, you probably didn't wear a giant penis on your head and go out in public bombed.

So you are a gay guy, sitting in your gay bar waiting for the drag show to come on the stage (Laslo, are you hear) and a dozen drunk girls roll in.

Me and my friends were always too cool for this sort of thing. These events were for annoying shallow people.

Oh Yea said...

"the farmer, a devout Catholic"

Catholics were never a historically disadvantaged group were they? But it is ok since we had a Catholic president 50 years ago.

Gahrie said...

Some people simply will not be happy until all the White, heterosexual splooge stooges are in chains.

Dave from Minnesota said...

AA, see my question above. Can a farmers market, or the Denver airport, or a college, ban a vendor because the owner believes in the traditional definition off marriage, when they have not asked all other vendors what their views on marriage are?

Would that be like asking blacks to take a civics exam before being allowed to vote, but not asking white people to take the test in order to vote?

Wilbur said...

Should a gay bathhouse - open to the general public - be able to bar admission to women or transgender men, i.e., anyone who does not present as male??

richlb said...

"Maybe gay bars shouldn't be putting up with bachelorette parties! How about some lateral thinking?"

Well, there is one huge reason gay bars put up with Bachelorette parties - PROFIT! It's really maybe the ONLY reason.

tcrosse said...

I have it on good authority that bachelorette parties like gay bars because the whole (hetero) sex dynamic is off the table, i.e. nobody hits on them and they're not competing for guys.

Ron Winkleheimer said...

Reverse engineer this. You know that it is true that these things happen. There are women who do this. What sort of women would they be?

Self-centered ones who simultaneously think that going to a gay bar is "edgy" while also thinking that they are progressive? You know, assholes.

Roger Sweeny said...

discrimination is bad and illegal when it's done by bad people for bad reasons, but it's good and legal when done by good people for good reasons.

If I were cynical, I would say that is the de facto holding of Grutter v. Bollinger.

Mark O said...

Don’t stand in the doorway
Don’t block up the hall
For he that gets hurt
Will be he who has stalled
There’s a battle outside and it is ragin’

Ron Winkleheimer said...

@tcrosse

That thought occurred to me as well. But why not just have it somebody's house? Drinks would be a lot cheaper.

AlbertAnonymous said...

When he's done he should sue to shut down Hooters. They don't hire chicks with dicks to wear the short orange shorts and super-tight tops.

Crabs in a bucket.... Just keep pulling everyone and everything down on top of yourselves.

TWW said...

Never met a talking Bar...gay or otherwise.

John Tuffnell said...

Rent out the theater for a private party, then invite only yer wimminz friends.

Prentend it's a bachelorette party where all are cute and delightful watching wonder woman.

Problem solved.

Big Mike said...

When the historically disadvantaged group creates a special space for expressive purposes — even in a commercial setting like a bar or theater — aren't you sympathetic to its interest in preserving the benefits of the culture it has created?

No.

Jives said...

Gahrie and Angel Dyne nailed it. I've spent my fair share of time in NYC gay bars, and basically anyone who wanted to be there was welcome to be there, regardless of sex or orientation.

I think this promotion comes across as so offensive because the perceived "fairness" of this kind of discrimination is an outgrowth of such a warped worldview...i.e.we live in a White supremacist patriarchy, all men are tyrants and oppressors as dictated by their biology. Therefore we can roast them, ridicule them, exclude them, pathologize them, disapprove of them, take away their children and their wallets.....you get the idea. Men are witnessing (with horror) the world of ideas they live in transforming in this way, mostly due to the drumbeat of this ideology from mass media. It's too much, and I think it only serves to further alienate the sexes.

Gahrie said...

Rent out the theater for a private party, then invite only yer wimminz friends.

Prentend it's a bachelorette party where all are cute and delightful watching wonder woman.

Problem solved.


That assumes that the goal was simply to hang out with their friends. It wasn't. It was an attempt to marginalize men and express power over them.

Bruce Hayden said...

"When the historically disadvantaged group creates a special space for expressive purposes — even in a commercial setting like a bar or theater — aren't you sympathetic to its interest in preserving the benefits of the culture it has created? It's not the government. It's a private business. I'm not purporting to interpret the municipal law of Austin, Texas, only to discuss our principles of equality and freedom of association and expression."

Not in the least. What you are, essentially, arguing is that we should have two different standards of justice, one for politically favored groups (gays, women, Muslims, etc), and one for everyone else (men, Christians, etc). What you seem to be trying to do there is to justify rank hypocrisy and differing application of the law, based on the level of politically correct victimhood of the group trying to discriminate against those outside the group. Accordingly, members of a higher rated victim group can discriminate against members of a lower ranked victim group, but not the other way around. Of course, you ultimately get to the question of how do you determine rank of victimhood? The answer in real life is that it is a result of bloody battles by leftists, esp in campuses across the country. Not the group of people I would want in charge of this sort of thing - gender studies, gay studies, Muslim studies,Black studies, Hispanic studies, etc academics. Right now, the hottest, most officially aggrieved, victim groups are the Muzzies and the trannies. Never mind that Islam is maybe the second largest religion in the world, and may now have more adherents here than does Judaism - mostly because a bunch of Muslim terrorists successfully attacked this country on 9/11/01, and we went to war as a result. Poor Muzzies - such a high level of victimhood that they can get away with FGM and honor killing of women and girls, and executing gays. So, no, I don't buy into using current politically correct relative levels of victimhood as an excuse to selectively enforce the laws on the books.

richlb said...

For me I think the reason this comes across flat is that the "discrimination" being alluded to is out of step with the proposed action. If women made up some minuscule percentage of the movie going audience, I'd think an all-female showing of a movie might be a good come back. But women see as many movies as men, more or less. The real "discrimination" is that women are less represented as action leads in movies. The solution would be to form a movie studio that only produces female-led films.

John said...

I am fine with all woman, all black, all gay, all whatever venues.

PROVIDED,

and only provided, that white men are accorded the same rights.

Currently it is a one way street.

So Alamo Drafthouse: Go fuck yourselves. I hope someone sues you into oblivion.

Unless you want to have a male only showing of some movie this month.

John Henry

jimbino said...

if you forbid women from coming to a gay bar, you’re starting down a slippery slope translated into proper English is if you forbid women to come to a gay bar, you’re starting down a slippery slope.

If you allow bad English usage to go unchallenged, you're starting down a slippery slope that might end with people's uttering "absolutely!" every other word.

Dave from Minnesota said...

Kind of related....the 2018 Super Bowl committee is giving preferential treatment to homosexual owned businesses when it comes to issuing contracts. But there is a catch. You have to be "certified" as gay. How does one become gay and how does one prove it? Asking for a friend.

Laslo?

John said...

Blogger Wilbur said...

Should a gay bathhouse - open to the general public - be able to bar admission to women or transgender men, i.e., anyone who does not present as male??

Should a woman's gymn be able to bar anyone with a penis? Or perhaps, in these days, anyone who claims to be male?

I would say the answer to both is yes.

But if "no" it has to be no in both cases.

John Henry

MayBee said...

When the historically disadvantaged group creates a special space for expressive purposes — even in a commercial setting like a bar or theater — aren't you sympathetic to its interest in preserving the benefits of the culture it has created?

If women are a historically disadvantaged group for the sake of a movie screening, aren't they also historically disadvantaged when it comes to going to a bar? They should have the right to go to the bar of their choice? Or is the idea that if you are a historically disadvantaged group, you can shut out anyone of your choosing, even other disadvantaged groups. If you are a woman, it's *ok* to be discriminated against by a gay group, but not by a Christian group.

Also, what about poor white people? Are we going to say coal miners in Appalachia who had to live in company towns weren't historically disadvantaged? They probably had generations of male relatives sent off to fight in wars not of their choosing.

Wow, thinking of that last point....how about people who were drafted into war? Is that more of a historical disadvantage than say, a woman who got called a "broad" by a coworker?

Dave from Minnesota said...

John, right now, Trannie, including fake trannies, trumps woman. See the liberal efforts to put boys into girls locker rooms.

Christopher said...

That's not within the scope of the idea in the post because:

1. The excluded group is the historically discriminated against one. Moreover, the exclusion was done out of animus against the excluded group.


It is exactly within the scope of the idea--it is the very point of the idea.

We probably had to eliminate freedom of association the way we did because of how deeply rooted Jim Crow was, but everything comes at a price, as the Barry Goldwaters of the world pointed out before being anathematized.

What we now have is a sliding scale of oppression and points awarded at the Victim Olympics, where white dudes' and traditional Christians' status is predtermined at the bottom of of the totem pole.

We're either equal under the law, or we aren't. Since we aren't, I no longer give a damn about special pleading.

And that's how you got Trump

Gahrie said...

I believe a cake baker ought to have to sell cakes without discriminating based on the sexual orientation of the customers.

But you don't believe that a theater owner ought to have to sell tickets to their theater without discriminating based on the sex of the customers?

Matthew Sablan said...

Maybe we can force a bar to bake a cake for a movie showing.

Ann Althouse said...

"What you didn't admit, is that the law clearly and explicitly prevents what the theater is doing...."

You're forgetting that constitutional rights supersede statutory law.

Ann Althouse said...

And you're forgetting that civil disobedience is an option and an American tradition.

Todd said...

When the historically disadvantaged group creates a special space for expressive purposes — even in a commercial setting like a bar or theater — aren't you sympathetic to its interest in preserving the benefits of the culture it has created?

Sorry Ann but F*CK NO. That ship has sailed. Why is it that there is absolutely NO justifiable reason to leave any sort of traditional male space alone but all other gender/race spaces deserve protection? I remember when the Citidel was the cause du jour. Who cares that it was a distinctly and uniquely male space that served a specific purpose? Who cared that there were other "versions" of that space for women so as to enable a "similar" experience? Nope. Didn't matter. Had to let women in to share that specific experience even though doing so changed it into not that.

Happens time and time again to "traditional male spaces" so screw that. Screw safe spaces, screw "uniquely {blank}" experiences. Heck if a man that feels like a woman is good to go in the Planet Fitness women's locker room, nothing is off limits!

Everybody into the pool, we are having a PARTY!

Christopher said...

Catholics were never a historically disadvantaged group were they?

Are.

You.

Kidding.

Gahrie said...

"What you didn't admit, is that the law clearly and explicitly prevents what the theater is doing...."

You're forgetting that constitutional rights supersede statutory law.



What Constitutional right?!!?

Are you suggesting that theater owners have a Constitutional right to discriminate based on the sex of their customers? Where is this "right" found? Let me guess...the 14th Amendment?

Oh Yea said...

Lawsuit: Farmer’s Market Wrongly Barred Catholic Farmer

Catholic farmer Steve Tennes says the city of East Lansing, Michigan, illegally barred his farm because of his family’s religious beliefs.

"Tennes’ farm has filed a lawsuit against the city in the U.S. District Court in the Western District of Michigan with the aid of the legal group Alliance Defending Freedom."

http://www.ncregister.com/daily-news/lawsuit-farmers-market-wrongly-barred-catholic-farmer

Gahrie said...

And you're forgetting that civil disobedience is an option and an American tradition.

Tell that to Orval Fabus

Ann Althouse said...

"AA, if you go to a larger city trendy bar district.....the bachelortette parties are quite annoying. When you had your wedding shower, you probably didn't wear a giant penis on your head and go out in public bombed. "

I've never had a shower (in the party sense of shower) -- not a wedding shower or a baby shower, and I've had 2 weddings and 2 babies. I've been to very few showers too.

Unknown said...

Ann: Does the cake baker have to be shut down? Does the cake baker lose his right to sell insurance in a separate business because he doesn't want to bake a LGBT wedding cake? Should the cake baker lose his home? Should the flower seller be forced into bankruptcy?

Because it seems like you are arguing that they should be punished by the State for being unpopular.

--Vance

Gahrie said...

So banning splooge stooges from a movie theater is now a noble act of civil disobedience.

Anonymous said...


"1. The excluded group is the historically discriminated against one. Moreover, the exclusion was done out of animus against the excluded group."

Two queries: First, in this formulation, it is permissible to exclude as long as the excluding is done by a historically discriminated-against one? Blacks can exclude Whites. Can Blacks exclude Latinos? What about Latinos excluding Blacks? How does the victim-ranking go there? Is it permissible to exclude Whites everywhere?

Second, in these two scenarios -- Wonder Woman screenings and putative gay bars who wish to exclude straight women -- I think it's a bit too facile to pretend that the motivation might not be animus. Plenty of women are misandrists. And plenty of gay men are misogynists.

sean said...

"the exclusion was done out of animus against the excluded group."

Actually, anyone who has spent time (as a male) in gay bars, listening to the conversation, will confirm that much of the clientele has quite a strong animus against women. "Breeders" as they were called when I was young, although I can't report on current lingo. I definitely heard that word more in my life than any racial epithet you know.

Obviously, if the only gays you know are politically correct activists, you get a different impression.

Michelle Dulak Thomson said...

How do we know that the "bachelorettes" aren't all lesbians? Or doesn't "gay" pertain to both sexes? For that matter, can't/don't straight men visit gay bars?

I'm not meaning to be oversensitive here, but I really do think this carving out of more and more "safe spaces" has to stop.

Ann Althouse said...

Are you suggesting that theater owners have a Constitutional right to discriminate based on the sex of their customers? Where is this "right" found? Let me guess...the 14th Amendment?"

Read the older post of mine, linked in this post. The right that could be argued is freedom of association. It's inferred by freedom of speech. It's not an easy argument to make and I'm not saying it should prevail, but it is an answer to the assertion that there's a city ordinance that says something.

Michelle Dulak Thomson said...

Anonymous,

Plenty of women are misandrists. And plenty of gay men are misogynists.

And plenty of straight women are what used to be (and maybe still are) called "fag hags."

Jason said...

"What you didn't admit, is that the law clearly and explicitly prevents what the theater is doing...."

You're forgetting that constitutional rights supersede statutory law.


Constitutional rights like Melissa Klein's freedom to practice religion? Or the blueberry farmers?

Pick an argument, professor.

Gahrie said...

The right that could be argued is freedom of association.

True. But only if you ignore the last seventy years of civil rights law and court cases. Freedom of association was destroyed a long time ago.

It's inferred by freedom of speech.

No..you were right the first time..it is freedom of association.

It's not an easy argument to make

It used to be, and some of us think it should be...it was your side that destroyed it.

and I'm not saying it should prevail, but it is an answer to the assertion that there's a city ordinance that says something.

Then why bring it up and provide grounds for being called a hypocrite?

holdfast said...

What John Henry said.

Really, I would like a world where business owners and other were free to run their own lives as they saw fit. But we don't live in that world. We live under a thousand petty little laws cooked up by Leftists and SJWs, designed to regulate our commerce and behavior down to the nth degree. And NOW they tell us that all those rules don't apply to THEM, because womynhood and the Patriarchy. No. Fucking. Way.

They made this fucked up world and now they get to live in it. Every stupid, awful, control freak thing needs to be turned back on them immediately - failure to do that will cement the system of unequal rights that they seek to impose and enforce.

holdfast said...

Really? Freedom of Association? That's all ya got?

That ship sailed decades ago, sister.

MayBee said...

Can it be Freedom of Association if you have to qualify as a historically disadvantaged group? What about Equal Protection?

Jack Wayne said...

Althouse is generally in favor of buyers having more rights than sellers. The women buyers rights to exclusivity trump everything. The seller in this case is on their side so Althouse sees no problem.

Gahrie said...

@ Althouse:

How do you feel about segregation on college campuses?

Black student unions?

Black only dorms?

Kick Whitey off campus days?

How does this modern form of discrimination effect Grutter?

Ann Althouse said...

Freedom of association is implied by freedom of speech. There's no constitutional text that says freedom of association. It's implied.

Your "No..you were right the first time..it is freedom of association" is missing that point.

Jason said...

On the cake topic.

I believe a cake baker ought to have to sell cakes without discriminating based on the sexual orientation of the customers.

But I believe the cake decorator is in the realm of expressive freedom and should have the right to decline to create custom-made cakes with messages he wants to refrain from endorsing.


Nice dodge.

These weren't the issues in the Sweet Cakes by Melissa case, nor, I believe, in the florist case. In both cases, others are trying to compel these people to directly participate in same sex wedding celebrations, against their religious consciences. So imagine these are generic cakes, or flower displays, but the vendor is being forced to deliver on site, interact with planners, have their delivery van's logo outside, associated with the event, hang around the event to ensure the return of their gear, equipment, etc., and to collect payment, etc, and generally be forced to be a participant in the festivities. They have no right to decline. No right to boycott. And in the case of Melissa Klein and her family, no right to even speak out in their own defense. Your happy-face fascists slapped them with a gag order that prohibits them from publicly protesting. Aren't these all expressive rights?

You were fine with all that at the time. But now that it's not those creepy Jesus people you never understood in the crosshairs you're having all these pangs of cognitive dissonance and celebrating the tradition of civil disobedience?

Now, didn't you just write that the Constitution trumps local statutes? Didn't you just write that we have freedom of association? Didn't you just write about this noble American tradition of civil disobedience?

Why is that the case for you now, but not then?

And as for civil disobedience, it occurs to me that the people in Greensboro practicing civil disobedience were sitting in at the lunch counter, not the ones trying to prohibit them.

Daniel Jackson said...

This is not a case like affirmative action, dubious as that is. It's about denial of access based on an objective parameter like skin color, genital shape, and even other social affiliations.

Fine you have to sell a cake you baked to whoever walks in your store. You should have the right to say no to a potential client--lawyers do this all the time.

It is a problem when the justification is that some people LIKE YOU did such and such in the past and YOU HAVE TO PAY. Sorry that is just plain bullshit. Previously disadvantaged group? White Women? Are you kidding? Miss Anne and Mister Charles? Which part of Miss Anne is disadvantaged? Her vagina? A passive partner to the apartheid regime of Jim Crow.

Really.

We all suffer when the elementary school yard bullies get to whine that it was their grandparents who were discriminated and now it is my turn because I look like the ones who were the discriminators.

Come on. Busing may have validity to give equal access to education. But equal access to party hearty like drunken assholes (a definable feature of all genders and racial types) at the expense of the barkeep and the poor schmucks on the road when the drunken sots are turned out.

There is no constitutional right to be an asshole. There is no constitutional right to say, "hey, it's my turn to fuck you."

Sorry. No way.

walter said...

Hey..with gay marriage in the offing, what exactly is a bachelorette or bachelor?
Do gays have these types of parties?

Funny how picturing a hetero bachelorette party crashing a gay bar is not surprising, but a hetero bachelor party doing the same seems HIGHLY unlikely...despite so many hetero guys being fascinated by lesbians.

Fernandinande said...

That's not within the scope of the idea in the post because:

...you want people with sexual problems to have special rights. You don't want logical and legal consistency.

1. The excluded group is the historically discriminated against one.

No they're not. Probably most of the actual people involved have not been "discriminated against" in any way, because they're too young, etc.

Even if they were, that form of justification is a case of "two wrongs make a right".

Moreover, the exclusion was done out of animus against the excluded group.

So what? The current exclusion is also done out of animus.

2. A lunch counter is not created for expressive purposes and doesn't come within ideas about expressive association.

Even if we are to believe that "expressive association" is more important than any other association, which it's not, the chef, who is an expressive artist and not a robotic short-order cook, and his customers might disagree because...who are you to determine what is "expressive" and what is not?

Hammond X. Gritzkofe said...

Well, now. That IS refreshing.

Gahrie said...

Freedom of association is implied by freedom of speech.

Close. Roberts held that it was implicit in the right to engage in activities protected by the First Amendment which would include speech, but not limit it to speech. Let's call it a draw.

But you do agree that Roberts clearly supports the city non-discrimination laws....right?



Kevin said...
This comment has been removed by the author.
Kevin said...

"I chose not to discriminate so no one else should have freedom to choose" doesn't sound like much of a legal argument.

Seeing Red said...

Since gender is fluid, what difference, at this point, does it make?

If I'm feeling frilly that day, I'll go watch WW wit da wimmins.

And use the female bathroom cos it's ok now to do that.

I'm just looking for the cheese dip to go with the pretzels people are contorting themselves into to argue I get to do what I want every day and no one can say no, even tho I look like a hypocrite every damn day.

It's all about the feelz.

Anonymous said...

Is there any way a movie screening that allowed only boys and men would pass muster in Althouse's world? Curious. Does it all come down to victim-ranking at the end of the day? It's a dead-end leftist avenue in my opinion.

Peter said...

"Aren't you sympathetic to their interest in preserving the benefits of the culture they created? It's not the government. It's a private business."

BUT isn't the question not whether or not one is sympathetic, but whether one's sympathy for equal protection of the laws should and must trump whatever sympathy one may have for any particular special case?

Isn't there a saying that hard cases make bad law? Where does abandonment of Equal Protection lead, if not to a state where some are more equal than others?

Sebastian said...

"It's a private business." Sock that social justice to 'm, good and hard. There's no culture like prog culture.

Gahrie said...

Where does abandonment of Equal Protection lead, if not to a state where some are more equal than others?

"Equality good, feminism better", they bleated.

Seeing Red said...

How about I'm as sympathetic to their culture as they are to mine?


Interesting sympathetic Vs. tolerant.

Scott M said...

I believe a cake baker ought to have to sell cakes without discriminating based on the sexual orientation of the customers.

But I believe the cake decorator is in the realm of expressive freedom and should have the right to decline to create custom-made cakes with messages he wants to refrain from endorsing.


I realize that legaleeze is full of this sort of hair-splitting, but this strikes me as disingenuous and I'm a bit surprised at it from you, AA. By this logic, the cobbler is only exempt if he doesn't make the sole, the carpenter exempt if he only paints the house, the landscaper exempt if he shapes the hedge. In small businesses, the making/growing part is integral to the final, sell-able product.

n.n said...

Homosexuals, bisexuals, and undecided deny thou transgender. Deny thyself. An awkward choice.

Bruce Hayden said...

"You're forgetting that constitutional rights supersede statutory law."

Not really. You seem to be arguing selective Freedom of Association, based on progressively assigned victim priority, presenting statutory law, when convenient. Men can't exclude women, but women can be exclude men. Straights can't exclude gays, but gays can exclude straights. Blacks can exclude whites, but whites can't exclude blacks. Etc. black Muslim female transgendered can exclude everyone else, but can't be excluded. Selective enforcement of the law is an Equal Protection issue.

n.n said...

They do not discriminate based on orientation (i.e. individual bias), but rather its expression as a behavior, specifically selective normalization/promotion rather than equal tolerance, and probably congruence ("=") or selective exclusion. The only people who judge and discriminate between individuals based on class as a matter of principle (e.g. the [class] diversity precept of the Pro-Choice doctrine), including color, sex, age, etc. are progressives and liberals, national and international leftists.

Bruce Hayden said...

Sorry: should have been: "You seem to be arguing selective Freedom of Association, based on progressive assigned victim priority, preempting statutory law, when convenient".

Scott M said...

Not really. You seem to be arguing selective Freedom of Association, based on progressively assigned victim priority, presenting statutory law, when convenient. Men can't exclude women, but women can be exclude men. Straights can't exclude gays, but gays can exclude straights. Blacks can exclude whites, but whites can't exclude blacks. Etc. black Muslim female transgendered can exclude everyone else, but can't be excluded. Selective enforcement of the law is an Equal Protection issue.

Selective enforcement of the law is worse than an Equal Protection issue. It's the gravel base layer of the road to armed conflict.

Titus said...

There are like no gay bars left. When I first moved to Boston in 1990 there were some around 20-25 gay bars. Today there are like 3-5. Most the places are now "mixed" and "loungy".

I go to Ptown and Ogunquit, Maine a couple times during the summer. There is always a huge group of girls having a bachelor party. They come to the gay bars because they can get wild, and don't have to worry about getting hit on by guys. They are incredibly annoying though. I have a straight friend who loves going to gay bars because he always get laid by a cute straight girl-they find each other in gay bars.

I was last in a gay bar last summer. I was last on Grindr last Friday. My grindr account profile says "right now". There are categories you can choose from-chat, friends, relationship, network and right now-you can choose all categories too. Guys know when your profile says "right now" it means right now. Buy I have met a couple guys on the app and we have met many times after our first meeting. This gets tricky because I have no interest in a relationship. And the past couple weeks I have hurt guys and I feel really bad. I did one guy 3 times and told him I loved him while doing it-he said he loved me too. But then I was over him and he freaked out about me leading him on. It was only 3 times and many people say I love you when doing it. He said stuff like I would never of done you like you did me...he is from brazil. Then there was a guy that I have known for like 5 years. We first met when I was taking the rare clumber out for last call for pee pee and poopy. He was walking by and stared at me and we kissed and put our hands down each others pants but then I ran into the loft penthouse....giggling. Well years later we found ourselves on grindr and over the past 2 years we have met maybe 10-12 times. He came over last weekend and we fooled around and he wanted to stay over and I said no. He got really hurt and now told me he can't see me anymore and he remembers how he felt when I didn't let up to the Penthouse Loft the first time we met. He said he felt the same way last weekend when I made him leave. So now I feel bad...he is nepalese and very hot. I have decided there will only be doing right now, and no repeats. I don't want to hurt anyone.

Grindr and Scruff have really changed the dating scene.

JAORE said...

Lord I hope our hostess is trolling just for the sake of argument.

If not what I hear is:

If you are in a historical victim - but not TOO historical - class (you know because you are in a group that is an actual majority like women, or, say, President Obama's kids) you can exclude "others". But if you are among the historically privileged (you know like the son of that unemployed Kentucky coal minor) tough noogies.

Or (worse)

If I deign your activity to be artsy, you are in the clear. If I determine you are a peasant laborer, tough noogies part 2.

n.n said...

Pro-Choice is a many unreconciled religious/moral/legal philosophy that is first-order forcing of social warming and climate change.

MayBee said...

Titus- Aren't you married?

Murph said...

Daniel Greenfield wrote about victim hierarchy a titch under 5 years ago. (He really needs to update it, what with all the more recent additions to the "victimhood" class list.)

He called it the "Minority Victim Value Index."

Here: http://sultanknish.blogspot.com/2012/08/the-minority-victim-value-index.html

The Cracker Emcee said...

"On the cake topic.

I believe a cake baker ought to have to sell cakes without discriminating based on the sexual orientation of the customers.

But I believe the cake decorator is in the realm of expressive freedom and should have the right to decline to create custom-made cakes with messages he wants to refrain from endorsing."

Wow. The law professor equivalent of throwing down your weapon and running away.

autothreads said...

I believe a cake baker ought to have to sell cakes without discriminating based on the sexual orientation of the customers.

Would you extend that to printers? The baker just bakes stuff. Printers just print stuff. The Supreme Court already said that commercial speech isn't protected. If commercial speech doesn't come under the protections of the First Amendment, why should those who commerciallize expression get protections? Why should a black printer or t-shirt maker be able to claim First Amendment rights to refuse service to the KKK?

I don't realy get your distinction between things that are expressive and those that are simply the products of a business, particularly since porn and nude dancing have been ruled expressions. If nude dancing is an expressive endeavor, why isn't baking a cake? Does First Amendment protection hinge on frosting?

Jason said...

The Althouse of cards has completely collapsed.

Bill Peschel said...

Our host's mention of the freedom of association being within the first amendment led me to read the freedom of future foundation's discussion on this. Good reading.

I'm reminded from my Con Law course that I needed to parse out the facts and learn what defines each legal word before I jump in with the feelz.

In this case, it's the difference between simple commerce (I make and sell something to anyone with case) and a type of commerce I'll call associated commerce, in which I create something bespoke for someone whose views I find offensive or even blasphemous.

In other words, selling a cake to a gay couple should be protected; making a special cake is a more intimate act that can put a business, and its owners, into a position where it appears they're supporting something they don't want to be associated with.

As Jason above put it: "the vendor is being forced to deliver on site, interact with planners, have their delivery van's logo outside, associated with the event, hang around the event to ensure the return of their gear, equipment, etc., and to collect payment, etc, and generally be forced to be a participant in the festivities. They have no right to decline. No right to boycott."

(Being a fiction writer, if I were the business owner, I would make sure I was paid up front, and warn the happy couple that my van has anti-gay marriage stickers and that I'll be prepared to exercise my freedom of speech and talk about it while I'm delivering the cake. Because I recognize a set-up by pro-gay marriage activists when I see it.)

I grew up in the South under court-ordered desegregation. It was a horrible solution to a real problem. Instead of bringing black neighborhood schools up to the level of majority white schools, forced busing caused chaos, discriminated against lower- and middle-class whites (who were bused, never the rich kids), and degraded the quality of education overall.

Now the father of a college-age son, I'm not thrilled to see favoritism extended to admitting lesser-qualified minority students over my son. I'd rather see qualified minority students get more financial aid to reduce their burden, and even cooperation between the local school systems and the universities to encourage them to excel and show them a brighter future. But that takes work and effort; much simpler to discriminate by a series of checkboxes, and that keeps the government off their backs.

EDH said...

I did answer, albeit late, the Althouse challenge in the prior thread.

EDH said...
Ann Althouse said...
How did you feel about Hobby Lobby's claim to have religious freedom rights?

Hobby Lobby was a closely held company being forced by the government to do something against its religious beliefs/practices. Hobby Lobby did not seek to deny anyone employment or patronage based on their differences with those beliefs or practices, much less solely on the basis of the protected characteristics of race, sex or religion.

Likewise, the movie theater is not and should never be compelled by the government to show a movie it disagrees with showing. As far as who they let in the door once a movie showing is open to the public, however, there should be no discrimination as to who they let in based on the protected characteristics of race, sex or religion.

The exception, as I said, would be unless the theater space otherwise open to the public is rented out to a private expressive organization who extends private invitations in connection with an expressive organization.
5/29/17, 2:15 PM

n.n said...

It should have been civil union... or incorporation for all.

Leigh said...

@Ann Althouse, if I understand your baker/cake decorator argument correctly, my construction company (which is pro-woman and pro-gay) MUST build a mosque for an openly gay-hating, women-oppressing religion. But my painting contractor (who is also pro-woman and pro-gay) must NOT be compelled to paint the dome gold? Or is just painting a dome gold not "expressive" enough to qualify for an exemption? What if the gold painting of the dome requires special filigree? Would that distinction qualify my contractor for an "expressive" exemption? Slender reed, professor. Slender reed.

And I'll just leave this here:

"There are things that people were concerned about that were unintended consequences [of the Civil Rights Act], for example, people who believe very fervently in people having equal protection under the law, and are against segregation and all that, still worried about the loss of property rights…for example, I can’t have a cigar bar any more, and you say, “well, that has nothing to do with race” — the idea of whether or not you control your property, it also tells you, come in here I want to know the calorie count on that, and the calorie Nazis come in here and tell me. […] The point is that its not all about that. It’s not all about race relations, it’s about controlling property, ultimately." ~ Rand Paul

https://thinkprogress.org/rand-paul-explains-his-familys-opposition-to-civil-rights-act-it-s-about-controlling-property-42a47bcf996a

Mr. Fabulous said...

(World Famous Lurker says....)

Excellent thread Professor. Does this reflect your classroom style? Challenge your students to offer solid, reasoned arguments, and then challenge them to defend said arguments by providing counter arguments sure to be offered by the opposition? That has resulted in some excellent comments in this thread, IMO.

HoodlumDoodlum said...

Ann Althouse said...
On the cake topic.

I believe a cake baker ought to have to sell cakes without discriminating based on the sexual orientation of the customers.

But I believe the cake decorator is in the realm of expressive freedom and should have the right to decline to create custom-made cakes with messages he wants to refrain from endorsing.


So there's not enough expressive content in creating an undecorated thing to merit 1A protection, but as soon as you decorate a thing that's expressive and protected? What if, as in the actual case of the wedding cake bakers, the "plain" thing being created is explicitly designed for an expressive purpose? That is, what was being asked for was not "a cake," it was "a wedding cake." Even if undecorated the cake itself carries expressive intent--the people who want to purchase it intend it to be a celebration of a specific action, and ordered it/tried to order it precisely for that purpose. They let the (potential) cake baker know that was the purpose and the function of the cake they requested--they wanted a wedding cake for their wedding. By agreeing to bake that cake (again, even if undecorated) the baker would be voluntarily and knowingly participating in that celebration, so the voluntary baking of the cake necessarily expresses SOMETHING on the part of the baker.

The baker would have sold a cake to anyone if it was "just a cake." The florist in one of the big cases in fact had a long relationship providing flowers to the gay couple that sued him--he was happy to sell "just flowers" but not "flowers for your wedding ceremony, to be used as part of the celebration of your wedding" since doing so would be an expression of a belief that the florist did not wish to express.


I don't understand the distinction you're making between creating a thing and decorating a thing as it relates to expression.

welas asih said...

semoga artikel yang anda post menjadi prioritas pembaca artikel sangat bagus dan mantap kunjungi juga website di bawah ini

OBAT BIUS MANJUR

Bob said...

What about ladies nights? Is that a problem?

JAORE said...

"What about ladies nights? Is that a problem?"

Shouldn't be a problem. Nor should 25% off to women for an oil change. Nor private golf course for men only, nor.....

But for some a subsection of these is INTOLERABLE!

James Graham said...

As someone who was actually admitted to Studio 54 during its heyday (I tagged along with some stylish people) I hope the lawyers stay away from this sort of discrimination.

It's okay to deny people entry for being "frumpy" and oughta be okay for bakers to say no to printing "congratulations" on a gay wedding cake.

For the record I like gay people and frumpies.

Martin L. Shoemaker said...

Respectfully, Professor: When does history begin? A thousand years ago? A hundred years? Ten? One? Yesterday?

If I go back ten years in the archives of this blog, I'll find records of historical oppression of pretty much any group you can identify.

I have a proposal: Equality begins TODAY. If you're oppressed TODAY, let's address that. If you TODAY lack opportunities because of you -- not your demographic, you personally -- being held back in the past, let's address that. But historical disadvantage of whatever demographic group you self-identify with does not prove a thing about your circumstances TODAY.

Individuals, not demographic groups. Content of character, not color of skin nor physiology. Equality today.

Bad Lieutenant said...

Ann Althouse said...
"Wouldn't your point also support the owner of the lunch-counter in the South in the 1950s? Public accommodations must be open to the public, regardless of race or gender, correct?"

That's not within the scope of the idea in the post because:

1. The excluded group is the historically discriminated against one.

Reverse discrimination is not the reverse of discrimination.

Moreover, the exclusion was done out of animus against the excluded group.

Patent, facial animus at work here.

2. A lunch counter is not created for expressive purposes and doesn't come within ideas about expressive association.

Not much of a cook, are you?

Althouse says: "[A]ren't you sympathetic to their interest in preserving the benefits of the culture they created?

God, no! Tit for tat.

Emerita, doesn't it hurt to go through life saying all this stuff you don't believe?