Way, way back in 2012, a gay couple walked into a Colorado bakery to order a cake to celebrate their wedding. The bakery’s owners, citing their religious beliefs that gay marriage was wrong, declined. The gay couple took the bakers to court, where they argued that the bakers violated Colorado’s public accommodation laws. They won, and the bakers eventually exhausted their appeals.
This case turned into a rallying cry for the Religious Right, which asserted that the bakers’ First Amendment-protected freedom of religion was violated. The Left enjoyed its victory, and the local ACLU chapter made it clear that forcing association takes priority over religious liberty. I’ve written before about how public accommodation is itself a violation of basic liberties, so today I want to consider a different angle.
If we can force a bakery to do business with everyone who walks in its door, how can we accept and even embrace the boycott of businesses by people who don’t like something about them? Is it acceptable to tell black people to only patronize black businesses? Should atheists be forced to eat at Chick-Fil-A, whose founders are openly Christian?
Of course not. Apart from the question of how this would even be enforced, it’s ludicrous to imagine that the government has any business telling people that they must not discriminate in their patronage of businesses. Government does, however, routinely tell businesses that they must not discriminate in their acceptance of customers. This public accommodation principle was born in the Civil Rights movement half a century ago, and was part of the response to systemic and institutionalized (Jim Crow) discrimination against blacks. It was a lesser evil, an infringement of liberty intended to counter a greater infringement. It has now metastasized into a tool used to target individual businesses, a “mission” far outside the original purpose of combatting systemic discrimination. It’s hard to imagine that, today, a customer won’t be quickly and easily able to find a merchant happy to have his business.
It’s generally a good test of objectivity in politics to reverse roles or swap identifiers in judging a policy. If we have a problem with something a Republican does, we should judge whether we’d feel the same way if a Democrat did the same thing. If we like the government’s mandating X for a particular group, we should contemplate whether we’d be as amenable if the group’s opposite was mandated in the same fashion.
Would it be just to force black people to patronize a grocery store with “white power” logos on its storefront, or to force Jews to dine at a restaurant that had swastikas on its menus? Of course not. Why do we subordinate the rights of some to the rights of others? The notion itself is not only offensive, it undermine’s society’s ability to bring pressure on such businesses via boycott. In other words, it defeats the market forces that would punish those businesses for crossing the lines of propriety. Why, then, must we force businesses to accommodate those with whom they don’t wish to associate? Society, without government’s help, will be more than happy to punish those who exhibit biases or bigotries that are unacceptable.
Some will argue that there is “right” and “wrong” at play, that a gay couple is in the right to ask a Christian baker to bake a gay-themed wedding cake, but that a white supremacist is in the wrong to ask a Jewish baker to draw a swastika on a cake.That “right” and “wrong” is not, however, the government’s job to decide. If we grant government the power to make that decision, we won’t have recourse when it makes decisions we don’t agree with. It’s the government’s role in a free society to protect our individual liberties, and that’s it. Those liberties include the freedom to associate with whomever we choose.
Lady Justice holds a scale and wears a blindfold. The symbolism is obvious, but even the obvious is lost when it comes to government and our rights. So, next time you see a perceived injustice and a remedy that involves government force, don the blindfold and swap the scales. If you get a different answer, perhaps you should rethink the remedy.
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First of all, I love the blog, and I am thrilled to be part of the Beta Test.
I appreciate this article. There has been much ado lately about Milo being banned from Twitter. There’s a lot of admonishment that this isn’t a free speech issue because Twitter is a private company and can ban anyone they want. Technically, Twitter is a publicly traded company. So there’s that. But let’s put that aside and look and the double standard. Twitter can ban a conservative firebrand, but a mom and pop baker can not refuse to make a cake for a gay wedding? How is that just?
The problem lies in the principle of “public accommodation” that was born in the Civil Rights era. I’ve written a whole lot about it – enter “public accommodation” in the search field in the upper right.
I’ve also speculated if there will come a day where social media get regulated as a “public good,” http://www.pigsandsheep.org/will-social-media-become-a-public-good/
Under the premise of economic liberty (forget religious freedom – the principle drills down to even more basic freedom of association), any private business should be able to choose with whom it transacts. Market forces would address injustices and bigotry. But, economic liberty is just about dead in this country, sad to say.
Oh, and we’re happy you are enjoying the blog. Thanks for being part of beta, and once we go live, please tell your friends about us!