Tobin wrote:Small businesses can fire anyone they want for any reason if they are a non-union employee. Most businesses with any sense would just put down they could no longer afford to keep the employee due to a downturn in business or some other business related reason. The real reason can be they don't like their religion, their sexual orientation, or whatever. That is nearly impossible to prove unless the business owner is foolish enough to put that down as the cause (or do something equally as stupid as writing it in an e-mail, etc). So, no exception is required. If you want to discriminate within a business, nothing can really stop you.
Stupidity can and does trip up many employers and managers, with just the type of e-mail you posit.
Nice twist on the OP. Pitting two of the most dearly held values when it comes to our society: free exercise of religion and no invalid discrimination.
Given American jurisprudence, it might depend on what business he runs? A bus or charter flight company? Hotel? Restaurant? As an emerging protected class, I could see the courts holding that he could not so discriminate.
What if a TBM owns a radio station and has an FCC license to do so. Can he keep an avowed wiccan off of the air on his frequency, for which the wiccan otherwise qualifies?
Brad Hudson wrote:Are we talking cans or shoulds? I get confused.
LOL. I like the concept of not limiting my confusion.
In the absence of a Supreme Court decision that grants suspect class status to sexual orientation or civil rights legislation that includes sexual orientation, I think a business owner could discriminate in that manner. I'm not sure there is anything in the statutes that govern common carriers or radio licensing that would prohibit discrimination against gays and lesbians. That's the can part.
In my opinion, running a business like a flower shop (which is the example in the article) has nothing to do with the free exercise of religion. No one is forcing the flower shop owner to marry someone of the same gender. The seeming conflict between the two values is, in my opinion, a false conflict. I don't think an an exception to civil rights laws is warranted in this case.
I have a harder time with a church that performs marriages for people outside of its congregation. The marriage ceremony seems to me more related to the free exercise of religion, and so I'd be inclined to let churches decide who they will perform weddings for. LIke I said above, I don't think I can articulate a principled reason why I would draw the line there and not some other place.
“The ideal subject of totalitarian rule is not the convinced Nazi or the dedicated communist, but people for whom the distinction between fact and fiction, true and false, no longer exists.”
― Hannah Arendt, The Origins of Totalitarianism, 1951