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Cato Institute on Civil Rights |
The law here is unsettled, especially as the right to the free exercise of religion is pitted against the right to be free from discrimination. For example: a Christian couple who own a small farm open to the public for seasonal activities were fined $13,000 for declining to host a same-sex wedding.
Freedom of association--the simple idea that people are free to associate, or not, as they wish--certainly isn't what it once was. Under common law, if you represented your business as "open to the public," you had to honor that, with exceptions for unruly customers. These rules left ample room for freedom of association, albeit with serious exceptions like Jim Crow, the deplorable state-sanctioned discrimination enforced by government.
Supporters point to two sources: Congress's power "to regulate commerce" and the Equal Protection Clause of the 14th Amendment. Not so, said a district court (reversed by an Appeals Court). The act does not regulate commerce. And the 14th Amendment protects against state violations, not against private acts.
Violence against women is a national problem. But that does not make it, under the Constitution, a federal problem. Congress's power to regulate commerce is not a power to regulate everything.
Congressional Summary:
Opponent's argument against bill:(by Cato Institute reported on Fox News): A bill in Congress that would prohibit discrimination in public schools based on sexual orientation or gender identity could stifle free speech and even lead to "homosexual indoctrination" in the nation's classrooms, critics say.
"The real danger is how this will be interpreted," said the associate director of the Center for Educational Freedom at the Cato Institute. "The definition of harassment could be broadly interpreted that anybody who expressed a totally legitimate opinion about homosexual behavior could be made illegal. That's a violation of those kids who want to express opposition to LGBT opinions or behavior. People have a legitimate reason to be concerned about this--not because they're 'haters' but because you're now trying to balance different rights."
Proponent's argument for bill: (Rep. Jared POLIS, House sponsor): "Hatred has no place in the classroom. Every student has the right to an education free from harassment and violence. This bill will protect the freedoms of our students and enshrine the values of equality and opportunity in the classroom."