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An “art” exception to discrimination begets the same problem as the amorphous concept of “religion” that groups are constantly trying to use as an exception to

An “art” exception to discrimination begets the same problem as the amorphous concept of “religion” that groups are constantly trying to use as an exception to permit discrimination. Should a bigoted deli owner be able to refuse service to minority customers because they’re a “sandwich artist” and forcing them to provide a service would be “compelled speech”? Of course not. But what’s “art”? And if we permit discrimination in the name of “art” where would we draw the line between art and a fungible service? Is the contractor who designed my new kitchen an artist? Can his company refuse to provide service to me for whatever reason he likes? What about the guy who painted and detailed my car? My dog groomer? The woman who does my nails? My landscaper? I’ve seen some beautiful wire work done by electricians, is that art? Who’s to say what “art” is? And even if we could come up with a clean definition why is it a problem if we “compel” them to provide their services? We compel speech all the time. License plates are compelled speech. 10-Ks are compelled speech. Privacy notices are compelled speech. Drug warning labels are compelled speech. Heck, in some states if you test positive for HIV you have a legal obligation to notify past sexual partners. That’s some pretty invasive compelled speech! But in an equal society your rights and beliefs, no matter how sincerely held, don’t give you carte blanche to ignore the rights of others. And the “compelled speech” argument is just a bogey man that can make any regulation sound sinister.

someguydave 5y ago
I think protecting groups from discrimination is less important than guaranteeing individual freedoms of speech and assembly.
haswell 5y ago
I want to be clear that I still find it deeply offensive that someone would discriminate against me for loving all kinds of people, not just the people that fit their narrow religious definition of marriage. That what they're doing is just awful is not a question. > But what’s “art”? A dictionary definition: > the expression or application of human creative skill and imagination, typically in a visual form such as painting or sculpture, producing works to be appreciated primarily for their beauty or emotional power. Staying focused on the "traditional" definition of art for a moment, I'd ask a few questions: - Should an artist be compelled to create artwork depicting religious scenes? Imagine a pastor asks an artist for a graphic recreation of Jesus' crucifixion - should they be compelled to create it? - What about a KKK leader asking for a portrait? - Or what if the "Q guy" who was all over the Jan 6th coverage commissions a painting glamorizing his involvement in the insurrection? I strongly believe that an artist should be free to turn all of these down. I'm not personally capable of producing art (at least not the kind that anyone would want to purchase), but I'd be traumatized if forced to create certain religious depictions based on my own history (I grew up in a cult-like religion and still suffer from PTSD in my 30s from the experience). I fully recognize that this topic is rife with complexity and there are slippery slopes everywhere. But at the same time, there is a clear difference between selling goods and creating/selling art, at least when focused on a "traditional" definition of art.
- danShumway 5y ago
  > Should an artist be compelled to create artwork depicting religious scenes? Imagine a pastor asks an artist for a graphic recreation of Jesus' crucifixion - should they be compelled to create it? This is, I think, the better comparison that should be drawn, not so much your other points. The KKK isn't a protected category, but religion is. An argument that someone might be compelled to make a website for a hate group is a theoretical argument about what could happen in the future. Regardless of how likely it is to happen or how reasonable the argument might be (and I do think it has some merit as an argument), it's still currently the case that a hate group doesn't fall under the same protected status behind anti-discrimination laws. However, religion does. It's not theoretical, it's a protected category today. Want to preface that I'm not a lawyer, but from what I understand about current anti-discrimination laws, a ruling that speech for protected categories could be compelled would imply that a secular website designer could be compelled today to make a website for a religious wedding featuring religious iconography or messaging that they found offensive or traumatic. I don't know that for sure though, I'd want a 1st Amendment lawyer to chime in one way or another. Regardless, I kind of suspect this would get overturned anyway if put to the test. I don't have the qualifications to argue confidently about it, but I suspect that the current Supreme Court would not agree with this ruling.
  - haswell 5y ago
    > This is, I think, the better comparison that should be drawn This is a good callout. I threw the other examples in mostly because I found them interesting to think about, but I think you're absolutely right that only one of the three can be directly compared. Thanks for bringing this up.
- weare138 5y ago
  While I do think the ruling is somewhat weird and contradictory like OP pointed out this business was going out of their way to make this an issue. Any business or individual can refuse work, you just can't do it for strictly discriminatory reasons but no one will know the reasons unless you tell them. If you as an artist/creator/business owner feels that way for whatever reason just don't do the job. Just tell the customer you don't have time or something. How hard is that?

someguydave 5y ago

I think protecting groups from discrimination is less important than guaranteeing individual freedoms of speech and assembly.

haswell 5y ago

I want to be clear that I still find it deeply offensive that someone would discriminate against me for loving all kinds of people, not just the people that fit their narrow religious definition of marriage. That what they're doing is just awful is not a question. > But what’s “art”? A dictionary definition: > the expression or application of human creative skill and imagination, typically in a visual form such as painting or sculpture, producing works to be appreciated primarily for their beauty or emotional power. Staying focused on the "traditional" definition of art for a moment, I'd ask a few questions: - Should an artist be compelled to create artwork depicting religious scenes? Imagine a pastor asks an artist for a graphic recreation of Jesus' crucifixion - should they be compelled to create it? - What about a KKK leader asking for a portrait? - Or what if the "Q guy" who was all over the Jan 6th coverage commissions a painting glamorizing his involvement in the insurrection? I strongly believe that an artist should be free to turn all of these down. I'm not personally capable of producing art (at least not the kind that anyone would want to purchase), but I'd be traumatized if forced to create certain religious depictions based on my own history (I grew up in a cult-like religion and still suffer from PTSD in my 30s from the experience). I fully recognize that this topic is rife with complexity and there are slippery slopes everywhere. But at the same time, there is a clear difference between selling goods and creating/selling art, at least when focused on a "traditional" definition of art.

danShumway 5y ago
> Should an artist be compelled to create artwork depicting religious scenes? Imagine a pastor asks an artist for a graphic recreation of Jesus' crucifixion - should they be compelled to create it? This is, I think, the better comparison that should be drawn, not so much your other points. The KKK isn't a protected category, but religion is. An argument that someone might be compelled to make a website for a hate group is a theoretical argument about what could happen in the future. Regardless of how likely it is to happen or how reasonable the argument might be (and I do think it has some merit as an argument), it's still currently the case that a hate group doesn't fall under the same protected status behind anti-discrimination laws. However, religion does. It's not theoretical, it's a protected category today. Want to preface that I'm not a lawyer, but from what I understand about current anti-discrimination laws, a ruling that speech for protected categories could be compelled would imply that a secular website designer could be compelled today to make a website for a religious wedding featuring religious iconography or messaging that they found offensive or traumatic. I don't know that for sure though, I'd want a 1st Amendment lawyer to chime in one way or another. Regardless, I kind of suspect this would get overturned anyway if put to the test. I don't have the qualifications to argue confidently about it, but I suspect that the current Supreme Court would not agree with this ruling.
- haswell 5y ago
  > This is, I think, the better comparison that should be drawn This is a good callout. I threw the other examples in mostly because I found them interesting to think about, but I think you're absolutely right that only one of the three can be directly compared. Thanks for bringing this up.
weare138 5y ago
While I do think the ruling is somewhat weird and contradictory like OP pointed out this business was going out of their way to make this an issue. Any business or individual can refuse work, you just can't do it for strictly discriminatory reasons but no one will know the reasons unless you tell them. If you as an artist/creator/business owner feels that way for whatever reason just don't do the job. Just tell the customer you don't have time or something. How hard is that?