Posted on 04/11/2008 8:26:38 AM PDT by NYer
“As a merchant, I will sell my goods and services to whomever I choose, at such time as I choose, under such circumstances as I choose. As long as my customer or client is in agreement, we have a deal.”
Um...no. That isn’t even close to being true. You wouldn’t stand a chance in court with that argument.
Businesses are heavily regulated. Those regulations include who you sell what to, when you sell it and for what price. Just try advertising apartments for rent to only Catholics, or whites, or heterosexuals, or Republicans...you won’t own an apartment very long! For that fact, try selling your car and advertising that only white male heterosexual Catholics are allowed to bid. Just make sure you can pay the fines!
From their website: “The Human Rights Bureau is a neutral agency created to enforce the New Mexico Human Rights Act.”
While I doubt they are neutral, the fact remains they were established by public law and have authority to impose fines.
“You can also request a Hearing Waiver within 60 days, which would allow you to file your case in State District or Federal District Court, rather than go before the Commission...”
Any info on how to get the state legislature to repeal that portion of the Act?
If you want on or off the NM Ping list, please FReepmail me.
Access to the ping list is available to anyone by going to my FR home page.
I haven’t lived in NM since 1998. My guess is the democrats have too much control for a successful attempt at repeal, while the republicans won’t want to take a black eye from the MSM when there is little chance of victory.
Sorry, but while I liked living in Portales, I have a low opinion of NM politics. Heck, I doubt we would win here in Arizona, which is more conservative an area than New Mexico.
Consider how broad NM’s Human Right Act is, covering “discrimination based on race, color, national origin, religion, ancestry, sex, age, physical and mental handicap, serious medical condition, disability, spousal affiliation, sexual orientation and gender identity”.
My guess is that under the law, EVERYONE in NM is a protected minority of some sort.
Do you consider it "discrimination" if somebody does not cater to your every whim?
If you want to star in your own porno movie, do you think it is "discrimination" if the local photographer you want to hire to do the filming tells you to get lost?
If my religious beliefs say that Conduct X is a sin, I have a First Amendment to be true to my religion and not be a party to Conduct X. In my own profession, that would include my First Amendment right not to participate in the abortion process.
If you do not like that, that's just too damned bad.
If you consider that "discrimination", that's just too damned bad.
The Constitution specifically guarantees the freedom of religion. The Constitution does not guarantee you the right to "have it your way". That would be Burger King.
My religious beliefs say that homosexuality is sin. If I convert the empty bedrooms in my house into an apartment and try to rent it, I won’t have the legal right to refuse to rent it to homosexuals.
A porno film, as I’ve already noted, may be allowed as going too far...but photographing a homosexual ‘marriage’ may not. The law is written broadly, and gives the Human Rights Commission and the Courts a lot of latitude.
Abortions may be one of the few things NOT mentioned in NM’s Human Rights Act. Homosexuality is.
My point is simply that many posters claim you can do/sell most anything you want to any one you do or do not want. That is not true. It may have been 100 years ago, but it certainly is not now. I would suggest anyone who sees ‘anti-discrimination laws’ arising in their legislatures fight them tooth and nail, because they will be administered by activists.
If you rent a room or a house, you are admitting that you do not care if sins are committed there since it is guaranteed that your renters WILL commit sins on your property unless your renter is Jesus Christ himself.
That, however, is different than somebody expecting you to take an active part in what you consider sinful behavior.
It would be illegal for me to refuse to rent my rental property to women who have had abortions but my right to refuse to participate in the abortion process is absolutely guaranteed by the First Amendment.
A porno film, as I’ve already noted, may be allowed as going too far...but photographing a homosexual ‘marriage’ may not.
Actually, from a purely religious point of view, homosexuality is specifically condemned in the Bible but not all sex is. The porno movie "Two Virgins on Their Honeymoon" could be claimed to be within the realm of Biblical teaching.
The law is written broadly, and gives the Human Rights Commission and the Courts a lot of latitude. Abortions may be one of the few things NOT mentioned in NM’s Human Rights Act. Homosexuality is.
The New Mexico STATE law is written broadly and New Mexico's state law is not worth a bucket of warm spit when it butts heads against the U.S. Constitution.
My point is simply that many posters claim you can do/sell most anything you want to any one you do or do not want. That is not true. It may have been 100 years ago, but it certainly is not now. I would suggest anyone who sees ‘anti-discrimination laws’ arising in their legislatures fight them tooth and nail, because they will be administered by activists.
That is true but such "anti-discrimination laws" still have to conform to the U.S. Constitution.
So...in your world, I can be compelled to enter into a transaction despite my own inclination to avoid same? In that case, nothing would preclude a penniless person from coming into my restaurant, demanding a steak dinner and refusing to pay because I am discriminating against the poor.
There is absolutely NO law of which I’m aware that compels me to enter into any sort of transaction with someone if I choose to say ‘No’.
I believe your point is that I may be guilty of some manner of discrimination if the person I choose to avoid is clad in the armor of some protected minority. That only makes (a smidgen of) sense if it is an ongoing pattern of behavior, and even then I’d suggest that it’s wrongheaded.
I am fully aware of laws and regulations that assure minorities of fair access to competitive bidding processes, and in employment, housing, etc. But, I don’t believe they extend to the conduct of free commercial activities. Add the obvious religious component of the instant case, and I believe it will be even more obvious that this commission erred on the side of political correctness.
We’ll have to disagree on this one. Good day.
"...if you run a business that offers its goods, services or facilities to the public, you are likely to fall under the “public accommodation” provision the New Mexico Human Rights Act, which prohibits discrimination in such places."
From the NM State Bar: "The New Mexico Human Rights Act (NMHRA)
In New Mexico, the Human Rights Act, which covers employers with four or more employees, broadens the prohibited distinctions to include ancestry, physical or mental handicap and age discrimination directed at persons in all age groups. The NMHRA now also prohibits discrimination based on sexual orientation and gender identity. The NMHRA also now specifically prohibits discrimination based on genetic predisposition. The New Mexico Human Rights Commission administers the NMHRA.
Additionally, the State Human Rights Act extends protection against discriminatory practices of proprietors of public accommodations and in some cases to private individuals."
From the 2003 version of the law (it was expanded in 2004, but I can't find the wording, and this is actually the House version, since I can't find the finished law):
"public accommodation" means any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment [which] that is by its nature and use distinctly private;
P. "sexual orientation" means heterosexuality, homosexuality or bisexuality, whether actual or perceived; and
Q. "gender identity" means a person's self-perception, or perception of that person by another, of the person's identity as a male or female based upon the person's appearance, behavior or physical characteristics that are in accord with or opposed to the person's physical anatomy, chromosomal sex or sex at birth."
It makes it illegal for "any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services, facilities, accommodations or goods to any [individual] person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to [an individual's] a person's ability to acquire or rent and maintain particular real property or housing accommodation;"
There are some limits - looking at it, I suspect I would be allowed to discriminate if I converted a couple of bedrooms of the house I was living in, but not if it involved a separate house.
I'm not a lawyer, but if someone in New Mexico wants to refuse service to someone because they look homosexual, or transgendered - you probably ought to talk to a lawyer first.
There are some limits - looking at it, I suspect I would be allowed to discriminate if I converted a couple of bedrooms of the house I was living in, but not if it involved a separate house.
Yes.
I am not aware of the existence of any public business.
In addition, there is the freedom of association (the Boy Scouts won on this premise at the Supreme Court level).
There was another exception made for religious organizations, but none specified for religious people operating a business. The law also applied only to businesses of a certain size - in 2003, it only applied to businesses with 15 or more employees, but in 2004 it was made to apply to businesses with over 4 employees.
I also found that NM Republicans attempted to overturn the law by referendum in 2004, but there were problems collecting signatures, and the State DA said the HRA fell into a category of law that could not be overturned by referendum.
A public business is a business that operates in the public.
The BSA was, I believe, ruled to be a private organization.
Don’t try freedom of association in a business - that ended in the 60s.
No, businesses that operate in public are private businesses.
I know of no public business.
Thanks for the research and the information. I am not a citizen of NM, so I find this both fascinating and frightening.
Are you aware of any court tests of the constitutionality of any of the various elements of this oh-so-sad-excuse for legislation?
For the state (at any level) to insinuate itself into commercial transactions in the name of Political Correctness is both ridiculous and dangerous, IMO.
I am not familiar with NM law, and will only say this...the people get that government for which they vote.
I’ll strike NM from my vacation list, despite the natural beauty I found there on my last trip, some years back.
No, they are not. Read the law: “any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services, facilities, accommodations or goods to any [individual] person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to [an individual’s] a person’s ability to acquire or rent and maintain particular real property or housing accommodation;”
and a public accommodation is defined by the law as “any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment [which] that is by its nature and use distinctly private;”
Or as the Commision empowered by the law to enforce it says, “if you run a business that offers its goods, services or facilities to the public, you are likely to fall under the “public accommodation” provision the New Mexico Human Rights Act, which prohibits discrimination in such places.”
Virtually every business that operates in the public, offering goods or services to the public, is a public business in the sense that this law applies. “Private businesses” that sell something to the public, or provides services or goods to the public, fall under the HRA.
For an exception, you have to be able to convince the Commission and the Courts that your business is a private club. Good luck.
An argument could be made that any business not supplying life necessities to the public is not a "public accommodation", such as a wedding photography business.
Don't tell me you believe that such a business cannot choose its clientele.
"TITLE II--INJUNCTIVE RELIEF AGAINST DISCRIMINATION IN PLACES OF PUBLIC ACCOMMODATION SEC. 201.
(a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.
(b) Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title if its operations affect commerce, or if discrimination or segregation by it is supported by State action:
(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;
(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;
(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and
snip
(e) The provisions of this title shall not apply to a private club or other establishment not in fact open to the public, except to the extent that the facilities of such establishment are made available to the customers or patrons of an establishment within the scope of subsection (b).
From another web site:
US Supreme Court: Civil Rights Act of 1964
The broad underlying purpose of the Civil Rights Act of 1964 was to eliminate the pervasive discrimination against racial minorities that had long existed in American society. The two most important provisions of the act are Title II and Title VII, which provide federal administrative and judicial remedies against racial and other group‐based kinds of discrimination in public accommodations and in employment, respectively. The Supreme Court has interpreted the act with reference to its broad underlying purpose and has resolved the major substantive and remedial questions under the act in such a way as to maximize the protection afforded to racial minorities.
The Court has ensured that racial minorities will have full access to all public facilities by broadly defining a “place of public accommodation” within the meaning of Title II to include facilities such as a “family restaurant” (Katzenbach v. McClung, 1964), a recreational area (Daniel v. Paul, 1969), and a community swimming pool (Tillman v. Wheaton‐Haven Recreation Association, 1973). As a result of this expansive interpretation, no person, because of race, can be excluded from any facility that is open to the public as a whole.
The NM HRA expands the categories and applies to the state rather than use interstate commerce, but it mirrors the CRA of 64...which was, if anything, expanded by the SCOTUS, not contracted.
I believe this is why WFB opposed the Civil Rights Act.
If the wedding photography is a “business establishment that provides or offers its services...or goods to the public”, then it is, by legal definition, a “public accommodation”.
Does this make sense to me? No, but it is the law. There seem to be more details, based on size of business, etc - but it is entirely possible that under NM law, a wedding photography business cannot deny service to two homosexuals having a ‘wedding’.
The Human Rights Commission has already ruled so. I suspect the Courts in NM will rule likewise...but like I said, I’m not a lawyer.
I shouldn’t have used the words ‘public business’ - that unnecessarily confused the issue. However, many people do not understand that their ‘private business’ is probably a ‘public accommodation’ - that certainly isn’t the meaning of the word that comes to my mind.
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