Is Use Discrimination Unlawful if Customers are Treated Equally?

July 10, 2015

By Jay Marshall Wolman 

There has been significant commentary in the blogosphere about a recent order out of Oregon allegedly imposing a gag order on a bakery that expressed an aversion to same sex weddings. I’ll leave the First Amendment analysis to Ken White at Popehat and Eugene Volokh as linked above. 

I’m a little more concerned with the order’s analysis of the discrimination claim itself. The Labor Commissioner did not undertake the traditional McDonnell Douglas test for discrimination. Now, this might not be an Oregon requirement, but there was no real analytical framework. This is usually important in determining if the acts were discriminatory. 

This case involved statements by the owners expressing an aversion to making cakes for same sex weddings. Let’s assume the easier case: an express policy against catering such weddings.  Is that unlawful? Why?

The statute prohibits announcing you will deny services “on account of …sexual orientation “.  ORS 659A.409. Technically, and it is unclear anyone argued this, no one is denied service on account of their orientation. Rather, the customers are denied service for the nature of the wedding. In most weddings, parents pay for the cake. This bakery would likely sell a cake to gay parents for their straight son’s wedding and refuse to sell to straight parents for their gay son’s wedding. No paying customers are denied on the basis of their orientation. The statute doesn’t address associational discrimination. Disparate treatment discrimination is not implicated and thus the bakery policy announcement of discrimination against same sex weddings, but not necessarily gay customers, would seem to be lawful. [Arguably, the conduct/person analysis of Elane Photography could suggest that it constitutes disparate treatment, but I believe that the conduct/person distinction is more suited to disparate impact analysis. The New Mexico Supreme Court in that case conflated Constitutional Equal Protection analysis with the statutory interpretation frameworks of disparate treatment and impact.]

The policy clearly has a disparate impact; there’s bound to be a spate of older gay couples now paying for their own weddings. However, the Commissioner did not address disparate impact theory, which may or may not be available under Oregon public accommodation law.  Thus, it may be the right outcome but for the wrong reasons. 


Knox. Knox. No Justice There.

January 31, 2014

By Tatiana von Tauber

What do you think of this Amanda Knox story?

I watched her interview here . It’s moving. I’ve been following the case for years and I empathize as sometimes facts lead to conclusions which create illusion, not truth and it is here we discover the depth of trust (and fault), in ourselves and our systems.

What is justice? Truly, at what level can another human being say “this person deserves x, y or z for punishment” and call it a day? Who is satisfied? What or whom does that “justice” affect and what is its effect? Will our community be better off with someone like Amanda in jail so we are safer or are we merely seeking justice built on what we believe a victim’s life is worth because it’s socially demanded we punish those who kill?

If Amanda Knox did aid in murder, has her emotional turmoil and years already spent in prison – in the battle for her freedom – not counted as “time served in prison” if prison is defined as a place of punishment? Has her particular suffering not counted as anything at all? For the Italian court to accuse Amanda Knox of guilt after innocence, and weigh a hefty 28 year term on her is so striking I feel violated and I’m just a spectator!

Let’s face it, society places value on murders. They happen all the time. Every day.  Why is the destruction of Knox’s life more important than the destruction of yesterday’s murderer? And what about tomorrow’s murderer? What is jail for? Is it a place to make another person suffer for their pain onto another or is it a holding cell to keep the rest of us safer? What factors determine when it’s both? Or is jail a place where we feel, as a society, a sense of accomplishment in that we are doing what we’re supposed to do to “bad people”? Is there hope to rehabilitate or only institutionalize?

I don’t know if Amanda is guilty or not. I do know that I find her to have suffered a good deal for the circumstances upon which she found herself. There’s a point where another human being should suffer for murder (Hitler comes to mind) and then there’s a point where another human being should be given reprieve when being played with like a pawn in a game and having clearly suffered through an aftermath of such accusation. How is 28 years more of prison time a case of justice served at this point in time?

Amanda Knox presents herself very authentically. Maybe she is faking it but to imprison her for another 28 years for a crime that’s been tainted is a crime onto itself. It is way too harsh and unreasonable. Consider that killing the enemy in war constitutes as justified murder – freedom fighting we call it – but Knox’s situation demands almost three more decades of her life? From an innocent verdict to “guilty beyond a reasonable doubt”?  Should this be the perfect case of “let it go”?

Life gets complicated when you discover that human beings have varied value and thus death isn’t the most atrocious thing we can do onto another.  The freedom we are given should never, ever be taken lightly as that option for choice is always at risk of being taken from others. I commend Knox’s ability to stay so vigilant with her freedom at hand and it’s terrible to have freedom handed to you like a toy to jump for.

For Italy, home of the Vatican, to not be an example of forgiveness in the light of tainted investigations (and prior innocent verdict!) certainly seems in line with the church’s very own hypocritical philosophy. Italy should have risen above common human nature of reaction. Punishing Knox will do absolutely nothing to bring back the victim, show or teach a lesson that hasn’t already been shown or taught, nor will it contribute to Knox’s potential good, to which I believe Knox is capable of expressing given the opportunity.

By demanding to lock her up further, Italy has shown an example not of justice but “murder to the spirit”. Knox, if imprisoned, would be as lifeless as the victim in the sense that neither could flourish, live a life to better themselves or others and nor contribute to the world through the good that is within them because they weren’t given a chance. One loss of life is enough but when grounds are not certain, why not give benefit of the doubt and rise above human weakness? Sometimes bad things happen and while time is the best healer (and eye-opener), it’s best to move on quickly to weave those experiences into new creations. Give people a chance. Justice is a human construct and in the case of Knox, justice begs for reinterpretation.

Amanda Knox interview: (http://gma.yahoo.com/amanda-knox-39-couldn-39-t-believe-hearing-071851472–abc-news-topstories.html?vp=1)


Talking to your kids about gay marriage

December 10, 2012

I used to have neighbors in Flori-duh, whose argument (to me anyhow) against gay marriage was “what am I supposed to tell my kids?

Louis CK had a funny reply to that.

“It doesn’t have ANY effect on your life. What do you care? People try to talk about it like it’s a social issue. Like when you see someone stand up on a talk show and say ‘How am I supposed to explain to my child that two men are getting married?’ I dunno, it’s your shitty kid, you fuckin’ tell ’em. Why is that anyone else’s problem? Two guys are in LOVE but they can’t get married because YOU don’t want to talk to your ugly child for five fuckin’ minutes?”

The issue came up with my daughter, yesterday. Age 4.

She asked what I was reading. I told her, “an article about a Supreme Court case” – 5 questions later, and it was time to make something up, or just tell her, and see if she got it.

I brought up one couple we know who are legally married (and happen to be my son’s “godfathers”). I told her “they are married, like mama and daddy, because they love each other.”

“Oh” she said.

I then told her about our cousin and his boyfriend of 25 years – who we also refer to as “cousin.” I said “they love each other just as much, but they are not allowed to get married, because they live in Las Vegas, which is in Nevada.”

“Oh. That’s not fair.”

There… conversation had. That wasn’t so hard.

I’m glad that my four year old understands the Equal Protection Clause better than some judges. When the gay marriage cases come before the Supreme Court, I’ll be impressed if Samuel Alito or Clarence Thomas are able to show as much intellect and wisdom as a girl who thinks that Santa Claus is a member of the First Amendment Lawyers’ Association.


Eternity was in our Lips and Eyes**

April 26, 2012

A bit frigid

Egypt’s women urge MPs not to pass early marriage, sex-after-death laws: report.

Apparently, some guys in Egypt hope to have one last romantic moment with their wives once they die.  For up to six hours post-mortem.  At least they are putting in a time-bar; else, Cleopatra and Nefertiti had better start chastity belt shopping.

**Antony & Cleopatra, Act I, scene iii

Update:  Story was fake. Sorry folks. 


Feminist War of 2012

March 16, 2012

By Tatiana von Tauber

I’m embarrassed to be an American woman with witness to the current state of the Union.

Being a woman is without a doubt the most difficult process of becoming I’ve ever undertaken especially since I began my role as a mother 14 years ago. Nothing prepares you for the experience of motherhood better than truth and so I feel the same about the future of young girls in America.  There are many I know who were totally lost in the wake of the conservative pool of stupidity in the days of GWBush and his side’s abstinence education policies in American schools.  There is an entire generation of kids who are completely misinformed about birth control and sex because of religion.

More and more I feel battered by having the feeling women were given erotic beauty for reproductive purposes – that selfish gene – and then, as though being whores weren’t enough, women were thrown into the immature flatlands of male needs where they were then expected to create synthesis. However, a bit of a power struggle later, women became those to not only seduce, but birth, nurture and support an entire family, if not society yet be given “jump for the carrot” freedom on body parts – by the very men they birthed!  How did America come to be like this? If American politics continue to enter the domain of a female’s sex life,  America has little to offer women of the next generation.

I’m drained from realizing Congress is really a bunch of men who can’t get their heads out of the female genitalia.  If they don’t pay to get in one they pay for others to stay out of one!  For the men who are playing around with this issue, women are only a piece of ass and little more, except maybe for their little girls who are a piece of ass for the boy next door. For women who support recent attacks on female rights in the name of being faithful to a God, I have no words, only disgust.

Reproductive rights, the womb, women’s health – all of it has to do with the absolute power this birth right gives to women; and patriarchy has never been stronger in modern America! As an American I am so appalled at this downfall of this great nation – that the womb and its ownership, the vagina and a woman’s health are on the table of political discussion rather than the real issues that need immediate attention, it all makes me want to throw up on Congress.

The bottom line to all this rhetoric is this: women have the power to veto men through sex and men don’t like that. Thank you Dr. Leonard Shlain for helping me understand this through your wonderful work, Sex, Time and Power (may you rest in peace) but how about a little help down here with the rest of the blind folks, eh?

The last time I checked, my kidney belonged to me and nobody could force me to do anything specific with it.  The main reason the womb is different is because it controls males’ sex lives.  The fact that women are under attack, in America, in 2012 stuns me.

Here’s my contribution to the debate: “Feminist War of 2012″.  I designed this back in 2007 or so and struggled with a proper title.  The Image just found its perfect match and almost sadly, its perfect time.

"Feminist War of 2012", ltd. ed. Giclee, 13"x19" by Tatiana von Tauber

Bonus material to chew on: 

Speaking of controlling women, this is an example of how women get screwed by men and the baby fantasy and how media uses them to make money to help glorify the chaos and continue the cycle.  See Kate Gosselin, mother of 8 now.

Great post and kick ass quote: The Body Politic, “This campaign needs more women and less gynecology” – Virginia Heffernan


Judge should review history of First Amendment

March 1, 2012

Pennsylvania District Judge Mark Martin needs to review his First Amendment law a little more carefully. Ernie Perce, an atheist who marched in a Halloween parade last year dressed as “zombie Mohammed,” was before Judge Martin after he alleged he was attacked by Talaag Elbayomy, a Muslim who took action after he witnessed Perce’s costume.

Perce wore a turban and a long, fake beard and painted his face green. During the parade, he yelled the phrases “I am the prophet Mohammed! Zombie from the dead!” He marched with another protestor, who was dressed as a zombie pope, carrying a banner that read, “The Parading Atheists of Central Pennsylvania: Ghoulish, Godless, God-awful.” According to Perce, Elbayomy attacked him, and Elbayomy was charged with harassment.

Judge Martin dismissed the charges against Elbayomy and scolded Perce, telling the protestor he had been insensitive. He also called Perce a “doofus.”

“You have that right, but you’re way outside your bounds of First Amendment rights,” Martin said, according to CNN. “I think our forefathers intended that we use the First Amendment so that we can speak our mind, not to piss off other people and other cultures, which is what you did.”

To the contrary, our forefathers intended that all U.S. citizens be allowed to criticize anyone they chose. The very first American citizens often criticized Great Britain, who they viewed as overly oppressive to the colonists. You can bet that the Brits were none too happy about that. The purpose of the First Amendment is to ensure that all people are protected when expressing their views, even if such views are unpopular. As GW Law professor Jonathan Turley pointed out, “People like Thomas Paine spent his entire life ticking off people across the colonies.” Another founding father, Thomas Jefferson, was hostile to the Catholic Church and criticized it often.

Perce was within his right to express his religious beliefs as an atheist, and if Elbayomy had expressed his dissent in a non-violent manner, he would have also been within his right. Sure, the thrust of the First Amendment isn’t to promote behavior that offends other people, but that is beside the point. Just because Perce offended Elbayomy did not give Elbayomy free license to assault Perce.

Judge Martin’s rationale for dismissing the charges against Elbayomy most certainly should not have been because Perce intended to “piss off other people and other cultures.” This is exactly the sort of thing the First Amendment was intended to protect against. Yes, Perce’s costume was offensive to Elbayomy, but it didn’t rise to the level of fighting words—there were no “personally abusive epithets” required by Cohen v. California.  Judge Martin should not have let Elbayomy off the hook for assault just because Perce said something he personally didn’t like.

Judge Martin could learn a thing or two by looking back again at what the First Amendment actually protects.


Muslim judge in Pennsylvania limits 1st Amendment

February 24, 2012

From Charles Platt

A judge in Pennsylvania who just happens to be of muslim faith informed a plaintiff that the 1st Amendment doesn’t necessarily give you the right to “p people off.” The plaintiff had worn a “Zombie Mohammed” costume in a public parade in Mechanicsburg, thus enraging a muslim observer who ran forward and tried to choke the man until police intervened. Charges of harassment, filed against the muslim for trying to choke the demonstrator, were dismissed by the muslim judge. Details here.


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