AZ Legislature turns back clock, resumes segregation, but this time for gays

[bedstuy]

Well, I guess, its because I can only make decisions based upon my background and present situation. Sure, I can 'put myself in the shoes' of people who are, perhaps, not like me, with very different backgrounds, and I can sympathise with their struggles and their plight and all the rest of the daily drudgery that is their existence. But, at the end of the day, it doesn't really matter, because, like it or not, rebel or not (which I don't) I am not one of them, and I have very different interests and values to them.

No, most people are able to feel empathy for other people.  That's being a normal human being.  You may have a psychological disorder. 

[bedstuy]

Well, I guess, its because I can only make decisions based upon my background and present situation. Sure, I can 'put myself in the shoes' of people who are, perhaps, not like me, with very different backgrounds, and I can sympathise with their struggles and their plight and all the rest of the daily drudgery that is their existence. But, at the end of the day, it doesn't really matter, because, like it or not, rebel or not (which I don't) I am not one of them, and I have very different interests and values to them.

No, most people are able to feel empathy for other people.  That's being a normal human being.  You may have a psychological disorder. 

I pretty much described empathy in the second sentence. Of course I can feel empathy, even for people whom I disagree with. But, that doesn't mean one should act upon every empathetic emotion that comes their way. Sometimes you can empathise with someone and think 'they're wrong' and do something contrary to their interests. For instance, and this is a rather extreme example, but one that anyway, illustrates my point in this post rather well. Suppose you are a judge, and you hand down a sentence of life imprisonment to a convicted criminal. If I were that judge, I would certainly empathise with the criminal in question, the remainder of whose life, probably, won't be particularly jolly. However, I wouldn't (and you wouldn't, probably) say 'oh hang it, let him go free'. That would be a case of over empathising, as it would lead you into making a stupid decision just because of an overactive heart. Alternatively, I could, in a fit of extreme empathy, give all of the money away to the poor. And then I'd be poor. I guess my point is that empathy is a valuable tool, but it shouldn't govern your brain. I mean, I suspect that you don't, fully, let it do so either. In fact, few people do. However, I am simply pointing out that, to me, the most important criteria when it comes to important decision making are how something will affect me, and the people around me.

You can't very well say that you have a normal understanding of ethics and empathy and then say that.  I'm not saying you should act on empathy alone.  I'm saying you need to have principles that apply to society if your're talking about laws.  Laws aren't made for your convenience or pleasure, they're a means of fairly regulating society.  You need to have principles stretching beyond yourself to have anything to offer in this discussion.

A rational adult has principles and makes rational arguments based on their principles.  Saying the world revolves around me is something a misbehaved child says.  Nobody cares about you, dude.

[bedstuy]

This bill has even lost the ultimate weathervane for Republican conventional wisdom. Mitt tweeted to Jan Brewer to veto.

Mitt is on Marriott's board isn't he?

In his defense, he rarely remarked about gay marriage/rights other than very hushed appeals to "traditional marriage", and never made it a campaign issue in 2012. He had a campaign advisor who was gay too, until he was forced out by socons(Mitt was displeased by this). If Romney was POTUS, he'd probably not have a problem with the SCOTUS decision about gay marriage either(at worst his reaction would be a sarcastic "oh noooo...." like when he was Governor).

He wasn't a cultural warrior like GWB. But yeah, Marriot board allows him to oppose it in his non-Presidency.

On the other hand, Mitt Romney supported a constitutional amendment to ban same-sex marriage and is a leader in the Mormon church which extensively funded the Proposition 8 campaign in California.

It's ridiculous to say Mitt Romney is less of a culture warrior than Bush.  Bush wasn't super-psyched to push the anti-gay agenda either, he just saw it as a political opportunity.  Remember, Bush was totally fine with Dick Cheney disagreeing about same-sex marriage during the 2004 campaign.  The difference with Romney is that it was less advantageous to oppose same-sex marriage in 2012 than 2004. 

And please, don't act like being on a corporate board is an important full-time job.  A large ficus tree could serve on the Marriott board and nobody would notice.

[bedstuy]

It was apparently only a two page bill

Which is why it is so astonishing that it could be so misinterpreted by the media and by most of the posters in this thread.  SB 1062 is not segregation. It does not even mention gays or sexual orientation and it does not mention discrimination.  It is not specific to a certain religion or religious viewpoint.   Those who that are screaming about how this bill is the reinstatement of the Spanish Inquisition should read this open letter from several law professors:

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The national discussion over this bill has been a sick joke, but at least now we know how few people truly value religious liberty, when push comes to shove. 

When would this bill come into play then?  Could a religious person decide not to honor a contract they made, because they discover that the other party is gay?  Could you negligently injure someone and not have to pay any damages because the victim is gay?

[bedstuy]

When would this bill come into play then?  Could a religious person decide not to honor a contract they made, because they discover that the other party is gay?  Could you negligently injure someone and not have to pay any damages because the victim is gay?

It would come into play when a service provider refuses to enter into a contract.  Conceivably it might also come into play in an existing contract if one side made a misrepresentation of what the service was to be for, but that would be the exception rather than the usual rule.  Certainly it would never come into play for physical damages.

I just read the bill so I think I sort of understand this. 

Generally, refusing to enter into a contract does not give rise to a cause of action, unless we're talking about employment discrimination or housing discrimination.  Arizona has no protections statewide for homosexuals so it's really ineffectual on that front.

It's pretty rare that the plaintiff is going to be a private party and the defense is going to involve state action which is what the bill covers.  I can hardly think of a case for this besides employment or housing discrimination laws protecting gays.

[bedstuy]

I think once you start defining your religious liberty as a right to tell other people how live their lives and a right to only associate with people of the same religious practices, you turn the idea of individual liberty on its head.  If you want personal freedom, you need to accept the exercise of personal freedom from other people. 

[bedstuy]

I think once you start defining your religious liberty as a right to tell other people how live their lives and a right to only associate with people of the same religious practices, you turn the idea of individual liberty on its head.  If you want personal freedom, you need to accept the exercise of personal freedom from other people. 

This is all true, but it goes both ways. People shouldn't be able to tell homophobic businessmen how to live their lives anymore than they should be able to tell gays how to live theirs'.

I agree to a point, but it's a disingenuous comparison.  Being tolerant of other types of people is not equivalent to being tolerant of other people's intolerance.  Homophobia is wrong and is a set of beliefs, not a group of people who immigrated to this country for Homophobiavania. 

[bedstuy]

Being tolerant of other types of people is not equivalent to being tolerant of other people's intolerance.  Homophobia is wrong and is a set of beliefs, not a group of people who immigrated to this country for Homophobiavania. 

This. Tolerance doesn't mean pretending that horrible people aren't horrible.

And to the homophobes, homos are horrible people.  That's why you need a much better reason than "it's horrible" if you're going to justify government action that forces people to do things they would rather not do.

That sort of makes sense in the abstract.  In reality, we recognize certain judgements are illegitimate.  If a large employer wants to fire someone because they're female or Muslim or black, we force them to do something they don't want to do.  We do take a side against unfair discrimination in those contexts.  If we're going to have a civilized society, you can't allow systematic discrimination in terms of basic necessities like housing and employment.

I'm still waiting for a clear actual or hypothetical example of this religious discrimination against homophobes.  If you can't even come up with a plausible hypothetical of what you're worried about, I don't think it's a big deal.

[bedstuy]

I don't see any problem here. An university has no business regulating personal life of their students. If it was a divinity school, I could understand, but not a law school.

And what business is it of the law societies what personal code of conduct a law school may require of its students?  How does that code of conduct make those students unfit to be lawyers?

That's discrimination by a private organization, not the government.  It's not relevant to the point at hand here.

[bedstuy]

I don't see any problem here. An university has no business regulating personal life of their students. If it was a divinity school, I could understand, but not a law school.

And what business is it of the law societies what personal code of conduct a law school may require of its students?  How does that code of conduct make those students unfit to be lawyers?

That's discrimination by a private organization, not the government.  It's not relevant to the point at hand here.

How is it not? Isn't the argument about whether private businesses should be legally allowed to discriminate against gays?

This is confusing.  Obviously, a private organization can say, we have a non-discrimination policy which includes gay people.  I think most reputable organizations have such a policy.  Obviously, the HRC can say, we won't hire people who are homophobic.  That's all 100% fine.  However, the government cannot practice certain kinds of discrimination against viewpoints and religious exercise.  That's the difference.

I'm still waiting for an example of the government of a state or the federal government discriminating against religious people on account of their homophobia.

[bedstuy]

This argument is really turned around.  Here's the clearest understanding I have of things:

1.  BOTH Jim Crow-esque segregation of homosexuals and government sanctioned religious persecution of fundamentalist Christians are not real issues in America.  Thus, Arizona's new law is not the beginning of a serious anti-gay campaign, nor it is remotely useful.

2.  Some private discrimination against gay people should be legal for religious institutions and individuals, but it shouldn't be tolerated on an individual or private level.  Homophobia is repulsive, but like private racism, it should be perfectly legal.

3.  Employment and housing discrimination against homosexuals should be illegal, except for those exceptions already under Title VII and the FHA, like extremely small businesses.  Similarly, we out to add sexual orientation to hate crime legislation. 

[bedstuy]

no one has the right to demand they be able to work at a specific job, live at a specific place, or shop at a specific business

This is the sort of point of view that would only be held by someone who has never experienced discrimination.

No it's the point of view of someone who isn't trying to force people to think a certain way.  I do not agree with idiot homophobes, but I will defend their right to be idiots because that way I can best ensure that those who think I'm an idiot won't try to force me to stop being an idiot.

Are you opposed to Title VII of the Civil Rights Act?  Would you support allowing discrimination on account of race, religion or gender?

[bedstuy]

Are you opposed to Title VII of the Civil Rights Act?  Would you support allowing discrimination on account of race, religion or gender?

Ideally, I'd like to see both Titles II and VII repealed someday, tho they were definitely needed in 1964 both as a remedy for past de jure discrimination and because of widespread de facto discrimination that impeded the civil rights of those affected by discrimination to the point that interference with the right of free association was warranted.  However, I wouldn't push for their repeal today. We might be at the point that Title II could be repealed, but it's debatable and there are plenty of more urgent issues that need to be addressed by the limited attention span of Congress.  Title VII is regrettably still needed fifty years after passage and probably the earliest its repeal could be considered is in another fifty years in 2064.

If you think employment discrimination against women should be illegal, why not LGBT people? 

And, just on this subject of gay people never being discriminated against, look at this article.  That details hatred motivated attacks on gay people in a small area of New York City in just a few months.  These things actually happen as most gay people can attest to. 

[bedstuy]

And, just on this subject of gay people never being discriminated against, look at this article.  That details hatred motivated attacks on gay people in a small area of New York City in just a few months.  These things actually happen as most gay people can attest to. 

I never said that gay people are never discriminated against.  And it shouldn't take LGBT specific laws to deal with physical assault.  Those attacks are felonies to be tackled and dealt with no matter their motivation.  Is it really less of a concern if someone gets assaulted for some other reason?

I've been assaulted for being gay and I've had people assault me in a mugging.  Believe me, it feels a lot different.  Just like it feels a lot different being fired for being gay and being fired for good cause.

[bedstuy]

And, just on this subject of gay people never being discriminated against, look at this article.  That details hatred motivated attacks on gay people in a small area of New York City in just a few months.  These things actually happen as most gay people can attest to. 

I never said that gay people are never discriminated against.  And it shouldn't take LGBT specific laws to deal with physical assault.  Those attacks are felonies to be tackled and dealt with no matter their motivation.  Is it really less of a concern if someone gets assaulted for some other reason?

I've been assaulted for being gay and I've had people assault me in a mugging.  Believe me, it feels a lot different.  Just like it feels a lot different being fired for being gay and being fired for good cause.

I'm not sure why different feelings about requires different laws. Why can't they give the perpetrator 5 yrs for assault in both cases?

It unfortunately likely that those who assaulted him for being gay did a more thoro job of it than those who assaulted him for money, in which case a stiffer sentence is warranted.  But that would be because of the result not the cause.

It's the same reason that premeditated murder has a higher sentence than a murder in the heat of passion.  A hate crime is a more morally wrongful and socially destructive act.  If you can't see that, I don't know if you know what discrimination and hatred feels like. 

But, it's really illustrative of something greater.  Gay people are the victims here.  "Religious" people who cling to homophobia are monsters.  Let's just acknowledge that fact.  As we become a more enlightened country and more old homophobes are exercising their freedom to associate with  6 feet of dirt, we can stop patronizing their stupidity.  They deserve their first amendment rights, but we don't need to pearl clutch over their hypothetical and imaginary persecution.

[bedstuy]

To add to what Ernest said, activism and legislating are different activities. If you're trying to make a major change to society, you want at least a significant minority of public support before you make it law. To do otherwise is to risk a backlash and setting the cause back 10 years. This doesn't preclude activism of course, but it does change the approach.

What are you saying?  What law?  What major change to society?  Y'all who are defending these laws (or are you?) need to articulate yourselves in a manner that I can comprehend.

What are the limits of this right to not associate with gay people?  Should it extend to large corporations?  Should it extend to housing, employment and healthcare?   Or would you limit it to individual small businesses like an individual photographer and religious organizations?

Putting aside the legality, wouldn't you agree that refusing service to someone on account of their sexual orientation is despicable behavior? 

[bedstuy]

Putting aside the legality, wouldn't you agree that refusing service to someone on account of their sexual orientation is despicable behavior? 

Of course it is, but just because something is despicable does not automatically mean that it should be illegal.

Maybe not automatically, but it certainly weighs in favor of protecting gay people. 

I'm just not following the counter argument here.  On one hand, there is a tremendous problem for someone who is denied employment, access to housing, civil rights, credit, schooling, etc on account of sexual orientation.  On the other hand, what?  There's an interest in people having the ability to engage in despicable behavior?  I don't understand why that's giving you pause.

[bedstuy]

Government-forced association has historically not been a tool used only to encourage the acceptance of minority groups by a majority that has discriminated against them.  The idea that we need to force association so as encourage a broader more homogenous society has more often been used against minorities that wish to avoid encroachment by a majority. Take for example the programs to force the assimilation of Native Americans and Australian Aborigines.  So the idea that forced association never can be a real problem or that it always works to the benefit of minorities is bunk.  Using the tool of government-forced association to deal with discrimination can potentially legitimize its use for less savory purposes.

That seems like a crazy stretch to me.  I can't even fathom how preventing discrimination against gays is going to lead to genocide or the elimination of minorities. 

Hence, whether to use this tool to combat discrimination depends on how serious a problem discrimination is.  I think you would agree that the sorts of things you mention above which are covered federally by Title VII of the CRA in the case of other groups can be more problematic than the sorts of things which are covered by Title II, and as I understood it, the law in question was dealing with situations analogous to Title II.  I'm not particularly convinced that we need Title II at all these days in the case of race, gender, or religion, hence my skepticism of extending it to sexual orientation.

Let's just stipulate to the fact that these types of public accommodation lawsuits will be rare.  But, what's the harm in adding gay people to the list of protected classes?  It sends a message and it's a natural inclusion in that list under the CRA.  Plus, let's just say there is a egregious example of discrimination, you would leave people with no remedy.  Just because you have this subjective belief that examples of sexual orientation discrimination are rare?  Anti-Christian discrimination is also rare.  Would you like to amend the CRA to only include discrimination against non-Christian religions? 

Plus, we've had anti-sexual orientation discrimination laws on the books for years in cities.  Has there been any negative consequence from that?   

While there would be some occasions on which its lack would lead to additional instances of discrimination, I'm not convinced that at the level I would expect it to happen that it would lead to anything more than some minor emotional distress, and that distress would be likely to happen anyway given the comments that would likely be made if associations were forced in such instances.  Since no matter who you are there will people who won't like you, and sometimes they won't like you for things you have no control over, that's a common problem that we all need to deal with.  (Ehhh, that sounds sanctimonious.  I need to find a better way to express that unpleasant truth.  Especially since there are unfortunately those for whom it is truer than it ought to be.)  Now if it goes beyond minor emotional distress, then it is a problem that needs to be dealt with.  Similarly if that dislike leads to the commission of physical harm, that needs to be dealt with in a manner commensurate with the harm done.

I guess that's true as far as it goes.  But, of course people aren't going to file lawsuits because of trivial discrimination.  That doesn't vary based on the existence of the statute.   

But, imagine we have these anti-discrimination laws on the books.  Gay people with legitimate claims are going to have remedies (even if it occurs rarely).  Corporate legal affairs departments are going to tell their employees not to discriminate.  There will be greater social consciousness of how society views discrimination as wrong.  We're going to create a norm of treating people fairly.  These are all good things.  But, you're against it because adding two words to a statute is a hassle? 

I hope we can find a better way to address the problem of discrimination against minority groups.

So do I.  I just don't see anti-private discrimination laws as the panacea progressives make them out to be.  They can be useful on occasion, but they are a tool that are better left for egregious cases.  Perhaps it simply hasn't come to my attention, but I'm not aware of widespread denial of public accommodations or retail shopping opportunities to the LGBT community in this country that would make the extension of something like Title II to sexual orientation the absolute necessity it was in 1964 with respect to racial discrimination.

There isn't widespread homicide by flamethrower either, it doesn't mean it should be legal.  You just haven't justified why we should only ban discrimination when it's a total necessity.  You just assert it like it's a fact.  We don't even have to hire new DOJ lawyers, build a bureaucracy or anything, we're talking about adding a phrase.  Why is the test absolute necessity?

[bedstuy]

Anti-Christian discrimination is also rare.  Would you like to amend the CRA to only include discrimination against non-Christian religions?

No.  And even if I did, it would be unconstitutional to treat Christianity differently than any other religion under the law.

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Have there been any positive consequences?  You ask me to argue why an anti-private discrimination law isn't needed.  I would say that the onus is on arguing why it is needed, as should be the case with any law.  We have too many laws as it is.  While a case can be made for such a law and it isn't a bad case, when it comes to public accommodations discrimination, I think circumstances favor leaving Title II alone for now but I won't be at all upset if Congress someday decides otherwise.  After all, how much discrimination is sufficient to require government action is a subjective one and as I have often said, legislatures are where subjective decisions should be made by governments.

You're not making any sense or responding to what I'm saying, so I suppose I should just give up on this.  But...

When it comes to protecting the rights of zoroastrians and Polish people, we have enough room in our law books to protect them.  We have room for millions of pages of text, but we can't add a few phrases to protect millions of people from discrimination?  That's a ridiculous argument.

As it is wrong to discriminate against someone on account of their race, so with religion, sexual orientation, gender, etc.  It doesn't matter how often it happens, it's wrong in of itself.  If someone was fired for being gay or denied service because they're black, and it was the first time ever, it would still be wrong.  Since, it's a terrible thing to do and results in actual harm to its victims, there should be an appropriate legal remedy.  We can argue about the appropriate remedy and how to administer the system.  But, it's silly to deny justice to potential victims just because you thought it was unlikely that their harm would occur because nobody can tell if someone is gay.

[bedstuy]

Let me make something clear since I think it may reflect on the difference between our positions.  I am not and never have been of the philosophy that even one injustice is too many and thus requires that something must be done.  Why?  Not because a think a little injustice is good.  No, even a little injustice is bad, but at low levels of injustice the amount of effort needed to combat it outweighs the potential good because that effort could be better spent elsewhere.  Of course everyone has their own subjective opinions as to the best place to spent the limited resources of the government in time and money.

When it comes to protecting the rights of zoroastrians and Polish people, we have enough room in our law books to protect them.  We have room for millions of pages of text, but we can't add a few phrases to protect millions of people from discrimination?  That's a ridiculous argument.

If you go back over this thread, you'll note that I think that we're at a point in this country where Title II could be safely repealed in its entirety.  However, I don't think the benefit of simplifying the law by repealing Title II is worth the effort it would take to do that which is why I want leave Title II alone.  Now if we were to go the effort of revising the Civil Rights Act, I'd easily accept adding LGBTs as a protected class to Title VII (and to the Fair Housing Act) in exchange for repealing Title II.  However, I'm under no illusion that such a moderate antihero stance would ever stand a snowball's chance in Saudi Arabia of passing.

I'm not a huge fan of how the Civil Rights Act works either.  Not because I think it's a burden on anyone to avoid discriminating, but because it can be difficult to prove anything decisively.  But, your argument really makes no sense.  What is the limited resource being consumed or burdened by keeping these statutes on the books or adding another category?

It's clearly not the effort of adding text to a statute.  It's not the burden on the businesses.  It's not the liberty interest of homophobes.  What is it that is consumed here?

The only plausible argument I can think of is DOJ and judicial resources.  But, as you said, these cases are going to be fairly rare as Title II cases are in general.  Plus, the DOJ doesn't prosecute all statutes evenly.  They use their best judgement and they would continue to do so.  If you're just adding words and not increasing the enforcement budget, you won't be adding any expense. 

[bedstuy]

If you're just adding words and not increasing the enforcement budget, you won't be adding any expense. 

In that case, you're adding to our bloated law code (albeit not much in this case, which is part of the reason why Title II repeal is not something I'd put on the Congressional agenda even if had a chance of passage).  Individually, laws that don't really accomplish anything aren't a burden, but collectively they are and they add to the frustration and discontent with a government that seems to promise everything yet seems to accomplish little.  I'd much rather have no words than empty words.

Are you being serious with this?  How is anyone this pedantic?

It's not empty at all.  It's "civil rights under law."  It should be enough that sexual orientation discrimination is materially the same as other types of discrimination and belongs in the statute where race, religion, national origin, etc are already there.  Like my example of flamethrower homicide, just because a certain type of harm is relatively infrequent is no real argument against legal recognition and remedy.

[bedstuy]

Your flamethrower example doesn't really bear merit.  We don't need specific laws for "flamethrower homicide" because they can be covered by just plain "homocide".  But we can't simply legislate against generic "discrimination" because discrimination is simply those forms of choice we as a society decide are wrong.  Hence any anti-discrimination law must list what forms of choice are wrong and moreover it makes sense to list the more serious wrongs rather than all wrongs, even if we could list all wrong choices.  Is it wrong to discriminate against the overweight, the short, those without a sense of rhythm?  Yes, but it's also clear that those aren't as serious as discrimination due to race, gender, or sexual orientation.  Now if I felt Title II could do more than I think it currently does, I'd be all for adding sexual orientation to that list. But I don't think it would accomplish enough to be worth the bother of changing the law.

But, that's just a matter of definitions and how easy or hard a wrongful act is to define.   Your argument is that legality should depend entirely on whether a list is a certain number of terms long.  Do you think that's an adequate basis for barring claims entirely?  It's not like the CRA has a laundry list in title II.  It's the difference between 4 terms and 5 terms. 

You should just say you're against Title II if you're against title II.  But this whole argument that it's too different to expand a list from 4 to 5.  That's blatantly silly.  How is it difficult to change a comma and two words in a statute?

But now that I got that out of my system, let me get back to your point "just because a certain type of harm is relatively infrequent is no real argument against legal recognition and remedy".  All remedies have a cost and all harms impose a cost.  Thus it only makes sense to apply a remedy if the cost of the remedy is less than the cost of the harm it could prevent.  I don't see Title II preventing enough harm to justify the costs associated with it.  That the cost of the remedy is small doesn't by itself justify it.  Now I think it is fairly obvious that you feel the preventable harm caused is greater and/or the cost is lower than I feel they are and so you reach a different conclusion.  That's perfectly understandable, especially since we're not dealing here with harms or costs that can be reduced down to mere dollars and cents.  That means our estimates of the benefits and costs and thus our conclusions are bound to be subjective.

That's very abstract.  Let's just look at the nuts and bolts here.  If there are zero claims, the cost of the remedy is zero dollars.  There are no fixed costs associated with adding this category.  The compliance costs are essentially zero because complying with Title II is simply common sense.  So, it's just a case-by-case determination by the courts.  If there is a trivial claim, the plaintiff will lose on a motion to dismiss.  That's the solution to your giant abstract problem.  You make all these abstract gestures but what is the actual cost in real terms?

[bedstuy]

You should just say you're against Title II if you're against title II.  But this whole argument that it's too different to expand a list from 4 to 5.  That's blatantly silly.  How is it difficult to change a comma and two words in a statute?

I did say.  And it's as difficult to add words as to subtract them (unless you're a lobbyist with campaign contributions to hand out who wants a change in the law that few will notice).  We only pass a few hundred laws each Congress even when it functions smoothly.

The difficulty of the political process doesn't make a difference from a normative perspective.  A proposed change in a law is not wrong because it would be controversial.   That doesn't make sense.  By that logic, slavery was a good thing in 1840. 

You seem to have a fairly utopian view of how the legal system works.  Even with a trivial claim, there is still all the time, effort, and money that must be spent to get that dismissal and courts rarely if ever punish those who bring trivial claims.  Plus you have to worry that if you do discriminate against a member of a protected class for a reason other than being in the class that you'll get sued for discriminating against em for being the class.  Now you may think these costs are essentially zero since so few cases are brought, but you still haven't addressed the other half of the equation.  I think that at this point in our society the benefits of Title II are essentially zero.  It doesn't matter how cheap something is if it's not worth the price.

That's not an argument against sexual orientation discrimination claims.  That's an argument against Title II claims in general.  It's completely arbitrary then to allow claims for religious discrimination and not sexual orientation discrimination.  Why don't we also deny social security benefits to gay people?  That's also very costly. 

Are you actually saying that a sexual orientation discrimination claim is less likely to have merit than other discrimination claims under Title II?

[bedstuy]

I don't necessarily have a problem with your conclusion.  Myself, I would rewrite Title VII substantially in a number of ways.  I think it's a statute that can be abused to harass employers and there are numerous evidenciary problems with Title VII.  I'm no bleeding heart liberal about this.  I have a problem with the reasoning you use to get there and your callousness towards the harm people suffer from discrimination.

Ultimately, you are saying that it should be legal for a motel chain or restaurant to hang a sign outside saying, "no blacks allowed or no Jews allowed."  Even if there is a massive amount of frivolous Title II litigation (I'm 98% sure that's not true), why not just tweak the law to fix that problem while allowing the clear, bulletproof case of Title II discrimination to go forward?

[bedstuy]

I just looked up DOJ's list of recent Title II cases.  It's not a long list, but it's instructive. 

Marriott canceling the booking of a Muslim conference after 9/11, Domino's systematically refusing to deliver pizzas in black neighborhoods, nightclubs and country clubs keeping out blacks and minorities, it's not as bad as Jim Crow, but it shouldn't be legal.  The fact that nightclubs and country clubs are the most common case is instructive.  Those are exclusive institutions with no economic incentive to take everyone's business. 

Not being allowed to join a private club is not a trivial matter.  That might be the only place in your area with a good golf course, gym or tennis courts.  Access to a golf course can be pivotal in making business deals.  Why just ignore that blatant unfairness and discrimination?  Just because you feel like racism, sexism, homophobia and ethinc hatred are over?