There’s a big controversy about whether business owners with traditional religious beliefs should be coerced by government into doing business with gay couples who want to get married.
Back in 2015, I explained that the real issue is freedom of association, not whether gay marriage is right or wrong (I’ve always wondered why government should have any role in marriage, but that’s a separate topic).
It’s time to revisit this issue now that the Supreme Court has released its decision on the case involving a Colorado baker who didn’t want to decorate a cake for a gay wedding. The Wall Street Journal opines that the decision was in favor of the baker, but on very narrow grounds.
The Supreme Court ruled 7-2 Monday for a baker who refused to custom-bake a cake for a same-sex wedding out of sincere religious belief. …this apparent victory for religious freedom may be short-lived. …While seven Justices on the High Court held for Mr. Phillips, the majority decision
could have gone the other way had some facts been different. Writing for the majority, Justice Kennedy notes that Mr. Phillips was “entitled to a neutral decision-maker.” …As is his wont, Justice Kennedy strains to avoid a clear and decisive ruling. While “religious and philosophical objections [to same-sex marriage] are protected, it is a general rule that such objections” don’t allow the denial of services “under a neutral and generally applicable public accommodations law,” he writes. Perhaps the best that can be said is that florists, make-up artists, photographers and other people of faith have lived to fight another day. A ruling against Mr. Phillips would have been catastrophic for religious liberty, but the majority’s muddle provides only gossamer protection. …The message is that governments can punish religious beliefs as long as they keep their animus toward religion in the closet.
Since I’m not a lawyer, I’m not sure what to think about the Court’s contorted decision.
But as a libertarian, I think the government should not be involved.
Jeff Jacoby of the Boston Globe understands what the issue is all about. Here’s some of what he wrote shortly before Trump’s inauguration.
Freedom of association is a vital human right. …I support…the singers who refuse to sing for Trump, the fashion designers who refuse to design, the landlords who refuse to rent, the dancers who refuse to dance. No one should be forced to play a role in a celebration they want nothing to do with, or to hire themselves out to clients they would prefer not to serve. …if a caterer turns down a request to prepare the meals for Trump’s inauguration?
Or a florist declines to provide the floral arrangements? Or a calligrapher says “thanks but no thanks” to addressing the invitations? I’d back them, too, and for reasons having nothing to do with Trump or Republicans or inaugurations — and everything to do with freedom of association. The right to discriminate — to choose with whom we will and won’t associate — is vital to human liberty. A dressmaker who can’t say no to a commission to design a gown isn’t free, and it doesn’t matter whether the gown is for a first lady or for the brides in a lesbian wedding. A liberal baker who declines to create a lavish cake decorated with the words “Congratulations, President Trump” is entitled to as much deference as a black baker who declines to decorate a cake with the Confederate flag, or a Muslim baker who declines to decorate a cake with the message “No Muslim Immigrants.” …Tolerance and pluralism are important values in a free society. So are choice and association. Your choices may not be mine; my preferred associations may not be yours. In a diverse, live-and-let-live culture, our differences are manageable — as long as government doesn’t interfere.
This controversy should have nothing to do with sexual preference. One of my former interns is gay, but does not want to force others to associate with him.
Being a gay libertarian…you are a pariah among your peers. …So-called civil rights groups like the American Civil Rights Union…say…that “when businesses are open to the public, they’re supposed to be open to everyone.” …Well, folks, I am gay myself – I am even married – and I stand by Philipps’ right to discriminate against whoever he wants. That, of course, makes me a traitor, a turkey voting for Thanksgiving
– and if I were African American, it would also make me an Uncle Tom. …many liberals stand by the ACLU’s faulty reasoning… Faulty because it implies that, once you start selling a product or service, you automatically lose your right to freely and voluntarily interact with other people. It’s opened to the public, so it suddenly becomes public “property”… Following that logic, a Muslim baker would be forced to make a cake with Mohammed’s face on it – an unspeakable moral crime in Islam – Hooters would have to hire anyone as a server and gay bathhouses would have to welcome female patrons. …the infamous Jim Crow laws not only maintained an apartheid-like state for African Americans, but they also dictated how private businesses needed to interact with these people. …instead of having government force businesses to serve anyone, I want it to let them discriminate in the open. This way, I know exactly where not to do business. Because even if I were heterosexual, I would very likely boycott businesses that discriminate on arbitrary traits like sexual orientation or skin color. It’s not a crime – no one’s life or property is endangered by this refusal of doing business – but it goes against my moral standards of treating every human being as an equal.
Excellent analysis. Indeed, I’d like to take partial credit. Except Pierre already was a solid libertarian when he started working for me.
Here’s another column with the same perspective, which appeared in the Federalist.
…it should be simple to appreciate why religious people who deeply oppose socially changing marriage to include same-sex couples would not wish to endorse or participate in a same-sex wedding. …Masterpiece Cakeshop, as with many caterers, florists, and photographers,
has merely declined to participate in an event or associate their brand with that event. Why do LGBT activists perceive this as a direct attack on the validation of their relationships? …I would not seek employment or request a table at a Planned Parenthood event and expect them to accommodate me. Why would I help them raise money or support their business model? If I encountered an individual morally uncomfortable with participating in an activity with me and my boyfriend, such as couple photos or planning a party, it would be uncomfortable for me to force her. …I would be taken aback by a rejection, I would feel it is my responsibility to choose another photographer rather than force another person to violate her faith for my satisfaction.
Interestingly, some folks on the left openly express their affinity for discrimination. Here’s Michael Moore exercising his right not to do business with theaters in North Carolina, along with a comment by someone who wants Moore to be philosophically consistent.
Ouch, that retort had to leave a mark. Though Moore isn’t bothered by hypocrisy, so he probably doesn’t care.
And speaking of hypocrisy, I wonder what my friends on the left think of the following examples of discrimination.
Here’s freedom of association in action, as reported by the Washington Times.
A boy whose letter to President Trump made national headlines last month reportedly wanted a pro-Trump cake for his birthday party, but his mother was unable to find a baker willing to fulfill the order.
…his mother “made him one herself, because she couldn’t find a bakery willing and able to do it.” Michael P. Farris is president, CEO and general counsel of the Alliance Defending Freedom, …wondered why bakers are allowed to decline to make birthday cakes supporting Mr. Trump, but not wedding cakes supporting same-sex marriage. …“The fact is that these cake shops have freedom of speech,” he continued. “They have the right to decline to use their artistic talents to celebrate events or promote messages that violate their beliefs, even if it offends a nice little kid.”
Kudos to Mr. Farris. He wants sauce for the goose to be sauce for the gander. But more important, he wants the right sauce, i.e., nobody should be coerced by government to associate with others.
The New York Post highlights another example of how freedom of association works.
Bartenders at a West Village hot spot served up discrimination — with a liberal twist — refusing to serve a customer because he was wearing a “Make America Great Again” hat,
according to a lawsuit. …Greg Piatek, 30, an accountant from Philadelphia, claims he was snubbed…by workers at The Happiest Hour on West 10th Street over his conservative fashion statement… “Anyone who supports Trump — or believes what you believe — is not welcome here! And you need to leave right now because we won’t serve you!” Piatek claims he was told as he was shown the door by a manager. …Piatek’s lawyer Paul Liggieri called the incident “humiliating,” saying it was his client’s “saddest hour.”
I think Mr. Piatek is being a snowflake. If some establishment didn’t want to serve me because of my libertarian values, I would shrug my shoulders and find a place that did value my cash.
I just wish folks on the left had the same perspective. Moreover, I wonder if they’ve considered the implication of their approach. This humorous item from Libertarian Reddit could become reality if the government had the power to force all of us to do business with each other.
And here’s another story showing how people choose to discriminate.
Brian Ashworth…was in the office when one of his employees walked back to tell him that a woman and four or five men…were in the dining room of Ace Biscuit & Barbecue… One wore a “Make America Great Again” shirt, and another had a shirt
promoting the British white nationalist punk band, Skrewdriver. A third man sported a shirt that said, “Pinochet Helicopter Company,” a reference to former right-wing Chilean dictator Augusto Pinochet, accused of tossing Communists and other political opponents from aircraft. …the group was behaving, minding its own business. …”One employee said to me, ‘Brian, be cool. Let them eat,'” the restaurant owner recalled. …Suddenly, the young man in the Skrewdriver shirt threw up a Nazi salute, which the others reciprocated, he said. “That was it. Oh my God, are you kidding me? ‘Get out of here. You’ve got to go,'” Ashworth told them, admittedly in unkind words. …They countered that they had rights, and Ashworth conceded they had rights but said, as a business owner, …he reserves the right to deny service to other groups. His employees don’t have to serve them, he said.
Amen.
I imagine most of my leftist friends will agree with the restaurant owner’s decision, but there’s part of the story that may cause them heartburn.
“I got a round of applause from the customers who saw me throw them out,” he said. “A round of applause is good, but it doesn’t keep anybody safe.” …He decided to close for the day, for the safety of his staff and customers. …Ashworth brought his two .45-caliber pistols to work… He supposes he’ll keep bringing them to work until he feels safe again.
Last but not least, Marissa Mayer explains for FEE how she doesn’t think government should get involved solely because someone does not want to do business with her.
This week I was denied a service because the company’s values are at odds with the values that Alliance Defending Freedom stands for — values I personally hold. And guess what? I’m okay with that. …Using my work information, I signed up for an online course created by Moceanic,
a team of talented fundraisers who have created a coaching and training business to help writers better connect with donors. …What I didn’t know when I signed up for the course, however, is that Moceanic does a lot of work with organizations such as the ACLU, Planned Parenthood, and LGBT activist organizations. …ADF and these organizations don’t exactly share the same values. …I received an email notifying me that they had refunded the cost of the course with no explanation as to why. I was a little perplexed by the email… That’s when I starting digging deeper into the brains behind Moceanic, and it didn’t take long for me to discover the values statement on their website. …”we reserve the right to choose not to train people working directly for, or on behalf of, organisations whose missions or values do not align with ours.” …I get it… Moceanic shouldn’t be forced to coach me on how to speak in a way that generates excitement and engagement for a cause that they disagree with any more than Jack should have to create a cake celebrating a marriage that conflicts with his beliefs.
Marissa is intellectually consistent and practices tolerance.
Too bad the same can’t be said for many other people.
I’ll close by noting that we all discriminate. We discriminate in the foods we buy, the friends we choose, the people we love, and the businesses we patronize. And I don’t think the government should coerce us to make different choices.
That being said, we also should recognize that some choices are fine and some choices are bad.
Because I have the taste buds of a child, I discriminate against restaurants with spicy food. Plenty of my friends tease me for my limited tastes, but I can’t imagine anyone (other than my mother when I was a kid) wanting to force me to eat foods I don’t like.
But what if I wanted to discriminate against people simply because of their race or religion? In that case, I would hope my friends would cease to be my friends and instead would upbraid me for my moral failings (I also hope some of them would be like Daryl Davis or Matthew Stevenson and try to rescue me from such odious forms of collectivism).
However, I wouldn’t want them to enlist government coercion. Believing in free speech also means allowing reprehensible forms of free speech. Believing in a free press also means allowing awful viewpoints. Believing in freedom of association means allowing disgusting forms of discrimination.
So bake a cake or don’t bake a cake. But if you have a bad reason for not baking a cake, you won’t be getting my business (even if your discrimination is economically rational).
[…] I believe in freedom of association, I think banks should have the liberty to discriminate against specific businesses, or even entire […]
[…] I believe in freedom of association, I think banks should have the liberty to discriminate against specific businesses, or even entire […]
[…] I believe in freedom of association, I think banks should have the liberty to discriminate against specific businesses, or even entire […]
[…] I believe in freedom of association, I think banks should have the liberty to discriminate against specific businesses, or even entire […]
[…] should point out that while he believed in freedom of association (including the right to discriminate), Walter also noted that capitalism was the best way of […]
[…] I believe in freedom of association, I think banks should have the liberty to discriminate against specific businesses, or even entire […]
[…] I believe in freedom of association, I think banks should have the liberty to discriminate against specific businesses, or even entire […]
[…] I believe in freedom of association, I think banks should have the liberty to discriminate against specific businesses, or even entire […]
[…] called “freedom of association,” and it’s a principle of a free […]
[…] should point out that while he believed in freedom of association (including the right to discriminate), Walter also noted that capitalism was the best way of […]
[…] should point out that while he believed in freedom of association (including the right to discriminate), Walter also noted that capitalism was the best way of […]
[…] should point out that while he believed in freedom of association (including the right to discriminate), Walter also noted that capitalism was the best way of […]
[…] I believe in freedom of association, I think banks should have the liberty to discriminate against specific businesses, or even entire […]
[…] I believe in freedom of association, I think banks should have the liberty to discriminate against specific businesses, or even entire […]
[…] I believe in freedom of association, I think banks should have the liberty to discriminate against specific businesses, or even entire […]
[…] I believe in freedom of association, I think banks should have the liberty to discriminate against specific businesses, or even entire […]
-link problems with the previous post-
on YouTube search:
“I’m A Lesbian Woman & I’m Leaving The INSANE “Progressive” Left”
by Arielle Scarcella
most libertarians aren’t very concerned about what activities consenting adults engage in… as long as they don’t impose their values or belief systems on the rest of us… fanatics (religious and otherwise) tend to want to hijack the mechanisms of Government in order to impose their belief system on the entire nation… here is an example of one lesbian’s wild rebellion against what she sees as a modern “mind cult”… just imagine these folks whispering in AOC’s ear their views on policy… the results might not be very pretty… and they most certainly would be an imposition on personal liberty…
ure=ehttps://www.youtube.com/watch?time_continue=165&v=mzYHBPTfXfeatmb_logoCI&
[…] While I normally don’t think the federal government should have any power to interfere with regards to market outcomes for hiring, pay, promotion, and association, it’s legitimate […]
[…] “freedom of association” is the best way of dealing with thorny social issues such as baking cakes for gay weddings and transgender bathroom […]
[…] offer their services to historically black schools, then those who bake wedding cakes should also have the right to offer their services only to the couples that they want to offer them […]
Zorba, if you have a baker who refuses to bake a cake for a same-sex wedding on religious grounds, go to another baker. Even though this is different, if you have a public official, a county clerk, who refuses to grant a marriage license to a same-sex couple based on religious grounds, the clerk should resign or contact state representatives with their concerns. Kim Davis clearly was willing to take the law into her own hands in this regard. You cannot selectively choose which laws you will abide by and enforce and which laws you will not. Kim Davis was out of line in my opinion from a legal standpoint. She said that her religious convictions would not allow her to grant marriage licenses to same-sex couples. Your religious freedom should not be used as an excuse to violate state or federal law that allows legal recognition of same-sex marriages. You can’t ignore laws just because they are inconvenient.
crisbd, John,
You got me wrong. I do agree with both of your last posts.
I was not inciting legislative activism against companies that force me to take a certain day off. As John points out that is part of my private contract of employment. They could demand that all employees be spanked every Tuesday for that matter, though I think that would likely be fatal for their competitiveness given their narrow selection of human resources (ok, depends also what business they’re in…).
My point was exactly that just as a company (through the private employment contract) forces me to subsidize electricity for Tesla driving employees, or take the day of on a religious holiday I care little about, so they can force me to not bake Viva Trump cakes, even though I may personally be willing to do so.
Therefore the solution of “individuals have constitutional rights but companies do not” seems to have its own problems.
Jeffrey,
You bring up a good point. Many people (perhaps even a majority) is a libertarian, in principle — once there are no externalities. But as soon as there is the slightest externality, statists and other proponents of coercive collectivism spring into legislative action. So, for example, as soon as the slight externality of your kids being exposed to the ideas of same sex marriage appears on the horizon, progressives (progressives in the wider “society over individual” sense that is) organize community activism to try to suppress it.
It is how many externalities you are willing to accept in order to uphold the liberty of others that determines how libertarian you are.
My support for libertarianism is mostly utilitarian rather than moral — though I’m not sure there’s much of a distinction since in the long term utility morphs into morals i.e. in the long term utility makes morals. And the utility is that by living and letting live — and accepting the externalities that go with that — allows humanity to concurrently and efficiently explore many more ways of doing things — and thus humanity progresses much faster along its exponential trajectory. …and in the end that is all that matters … the morals of fast growth will absolutely and decisively prevail one way or another.
So, no, progressivism does not lead to progress. It is a mentality of long term slower growth and stagnation. The fact that supply-side free-enterprise individuals have accepted the progressive vs conservative labeling is one of the greatest PR victories of progressivism/statism.
Outside of the religious arguments, all other arguments against same-sex marriage are patently absurd. Why do people who oppose same-sex feel the need to enact laws that violate the civil rights of a minority just to make themselves comfortable?
Zorba,
Employees don’t necessarily possess First Amendment rights in their jobs. Individuals do have a right to free speech that is protected by the Constitution, but they don’t have a right to employment.
Employment is a voluntary contract between employer and employee. Certain behaviors can be a condition of employment. Employees are free to walk away from jobs with conditions they don’t like.
Employers do need to be careful not to violate anti-discrimination laws. They also can’t be too extreme in their employment requirements, or they’ll have problems attracting and retaining quality employees.
> Zorba. When a company pays you to do a job they naturally get to decide about that job. How on earth do you find any justification anywhere to say that they should not be able to “force me to take the day off????”
That’s REALLY weird thinking…
crisbd, John Michael,
Businesses seem to have rights to impose certain things on individuals. For example, if I’m hired to work for a company that subsidizes electricity and parking for smug virtue-signaling Tesla drivers, then I have to essentially participate in the subsidy. The company does not owe me an option not to participate in this subsidy. Seems like I’m free to work for another company (until society using the democratic process forces every company to subsidize Tesla drivers, but that’s another story…). Similarly, seems like, the company can force me to not bake a cake for a gay couple because it violates the principle and charter established by the founders and supported by the board, or force me to take the day off on certain religious holidays the company’s founders adhere to.
This is why public accommodation doctrine is trash. It is pernicious and essentially forces the courts into these ugly cultural battles. In essence the legislatures are redrawing the demarcation zones of “acceptable” beliefs. We are witnessing a Peace of Augsburg in which Cuius regio, eius religio is the norm.
I remember seeing signs in stores that said, “We reserve the right to refuse service to anyone.”
.
I guess that means I’m getting old.
“Barney Frank to LGBT Voters: ‘People Have a Right to be Bigots,’ Don’t ‘Trash Them in Return’”
BY NICHOLAS BALLASY JUNE 6, 2018
https://pjmedia.com/news-and-politics/barney-frank-to-lgbt-voters-people-have-a-right-to-be-bigots-dont-trash-them-in-return/
it’s like Rodney Glen King says:
“Can’t we all just get along?”
>Dan and John Michael. Yes, it is indeed a difficult question.
In a small business, is Joe likely to hire Sally if she holds such diametrically different religious views that she’s willing to disregard the way he runs his business? Yet, with the existing laws in place, this proposal resolves much of the bake-a-cake /design-a-dress /take-a-photograph/ arrange-flowers dilemma.
As a libertarian, I certainly do not think government should tell any business how to conduct itself. But to resolve the issue we need to be pragmatic, and there are public accommodation laws on the books while much/most of the public are seemingly okay with the government making any sort of discrimination illegal.
So distinguishing between people who have 1st Amendment rights and businesses who are not explicitly mentioned in the Bill of Rights will amicably resolve the dilemma – it both respects your 1A rights as well as accommodates public accommodation.
What’s not to like? Given the existing laws, making this distinction creates a great solution to this difficult dilemma which is very unlikely just to go away.
crisbd,
Your solution sounds logically neat, but not sure it’s airtight.
First, the US Constitution does not give rights. It forbids government from taking
rights. Here’s a link to my post talking about the difference between rights we do have and those we don’t: https://caseforcapitalism.wordpress.com/2018/04/26/what-rights-do-we-have/
Individuals clearly possess rights to free speech, free exercise of religion, etc. The issue is whether businesses do. It’s not a slam dunk that they don’t. It’s a gray area. Businesses are just mechanisms for individuals to collectively organize. The Supreme Court has ruled that corporations do have free speech rights, and that at least closely-owned businesses do have religious rights.
Example of gray area: Assume Joe is a 100% owner of a cake-shop. He personally objects to baking a cake for a gay wedding, and also doesn’t want his business to participate. Joe employs Sally, who works ten hours per week. Sally is OK baking the cake. It seems odd that Sally could essentially make the decision for Joe’s own business over Joe’s objections.
I’m not saying I have the answer. These are difficult questions.
There is a simple, entirely equitable, but long ignored solution. This issue only seems complex if you ignore the crucial distinction between the 1st Amendment rights of a person and a business. The 1st Amendment gives every PERSON the right to both free speech and not to speak, but does NOT give these rights to businesses which instead can be forced to obey public accommodation laws.
Public accommodation law can compel a business to bake-a-cake /design-a-dress /take-a-photograph/ arrange-flowers but this does not mean an individual employed in that business can be forced to surrender his 1st Amendment rights.
So if someone in that business is willing, then the customer is accommodated and gets his cake/dress/photograph/floral arrangement. But if no one working there is willing, then fundamental 1st Amendment rights trump public accommodation laws and the would-be customer trying to insist his rights trump the 1st Amendment needs to go elsewhere.
It’s seems to be bigots such as the gay couple objecting to Philips’ refusal to celebrate their union that cause these sorts of difficulties to arise.
There were lots of nearby businesses willing to bake them a cake, they should stop trying to insist the 1st Amendment doesn’t apply to people who disagree with them and simply go elsewhere.
Did you notice that Mr Piatek (whom you called a snowflake) was doing exactly what the two complainants against Mr Phillips’ bakery were doing? Except that he didn’t take it to the court system.
[…] Mitchell on the gay marriage and wedding cake […]
I’m not sure I can comment on the issue since I very much discriminate based on gender and sexual orientation myself. So, while I pay lip service on being open minded on minor issues, in one of the most important core decisions in my life I openly and consistently discriminated against men, by choosing a woman as a spouse to associate with. As a matter of fact, I’m so sexist that I never even considered the alternative.
PS. I wonder, are people who sell sex allowed to discriminate against their customers based on sexual orientation?
Perhaps there is good discrimination and bad discrimination… and we can just impose which discrimination is good and which is bad … using the democratic process?…
Reblogged this on James' Ramblings and commented:
Reblogging for future reference (not necessarily total agreement).
I would maintain your first point is the most poignant. We should be allowed to associate or not associate for WHATEVER reason floats our boat. And I believe I would not associate with those who are not just different from me, but trying to flaunt it and force me into accepting what I consider to be weird or abnormal. It’s like Larry the cable guy said “My brother in law likes sheep, but he doesn’t have to participate in a parade every week to announce it.” It continues to bother me that those who adopt this lifestyle, it becomes EVERYTHING they are about, and creeps into every conversation or interaction. Can[t we just all live our private lives, and not have to have people accept our oddities? (We all have them).