About three years ago, Masterpiece Cakeshop, a bakery in Colorado, refused to bake a wedding cake for a gay couple on the grounds that it violated the owners’ religious beliefs. The couple, rather than find another baker to hire, decided to file a complaint against Masterpiece with the government. After two years of legal wrangling, Masterpiece lost their appeal to the Colorado Supreme Court. Gay rights activists, the liberal press and the ACLU heralded this as a victory against discrimination, while people who value religious liberty bemoaned it as a terrible precedent and a major blow against religious liberty.
Dig down into this story and you’ll find the roots for just such a ruling were laid long ago, when the concept of “public accommodation” took hold. Public accommodation is the idea that a private business that wishes to do business with the public must accept certain mandates on its behavior. Among these are strictures against discrimination. This idea gained strength during the Civil Rights movement, when businesses in the South hung “whites only” signs in their windows and picked and chose with whom they would do business. The Civil Rights Act of 1964 codified the principle of public accommodation, making various forms of discrimination illegal as part of a broader effort to undo the institutionalized racism of the Jim Crow South. The public accommodation principle was, unfortunately, a major blow against economic liberty, the basic right, born out of freedom of association, that says each of us can choose with whom to interact economically. While the Civil Rights Act was the best approach to dismantling segregation and undoing discrimination (established and protected by myriad Jim Crow laws), the precedents it established are doing real harm to liberty.
The public accommodation principle was not the first blow to economic liberty – not by a long shot. Among the most infamous incursions against economic liberty are the Slaughterhouse ruling by the Supreme Court in 1873, a ruling that gutted the 14th Amendment in its infancy by narrowing its interpretation and obviating the protections it would have bestowed upon individuals, and the Wickard v Filburn Supreme Court ruling of 1942, which granted the government the power to put limits on farmers’ crops, even if those crops were for private consumption. Today, it’s pretty much a given that engaging in any sort of economic transaction requires the blessing of multiple government agencies and is restricted by a seemingly endless list of regulations. The premise that we have any economic liberty at all is a joke.
This erosion of economic liberty both presaged and set the stage for the erosion of religious liberty. Economic liberty has been subordinated not only to massive government oversight, but to positive rights, i.e. rights that require the infringement of others’ rights (in contrast with negative rights, which are inherent to the individual and do not infringe on the negative rights of others). If we declare that someone has a right to a job, that job must be provided by someone who may not want to hire that person or pay the mandated wage. If we declare that someone has a right to housing, the money to provide that housing must be taken from other people. Same goes for the right to an education.
These examples are monetary in nature i.e. they involve either taking someone’s money or forcing him to spend his money in a fashion he may not agree with. But, positive rights can infringe on others in non-monetary ways. Mandating that a doctor perform abortions or assist in suicide in order to keep his license to practice medicine may violate that doctor’s personal ethical beliefs. Requiring that a broadcaster provide “equal time” to opposing viewpoints if it broadcasts an editorial on a topic may violate that broadcaster’s political beliefs, and certainly infringes upon his First Amendment rights.
In all these cases, certain rights are prioritized over others, and in the case of the gay couple seeking a cake, the positive right to not be discriminated against was declared more important than the baker’s economic liberty and freedom of association. Caught up in the fray was the baker’s religious freedom – the basis for his desire not to bake that cake. Religious liberty is itself a negative right – one doesn’t require that others’ rights be infringed in order to hold religious beliefs and practice them on one’s own property. It, unfortunately, is suffering the same fate as the rest of our negative rights – the rights that are truly inherent in each of us. It is being subordinated to various fabricated rights – rights that are not inherent, but rather are conveyed onto some through government forcibly infringing on the rights of others. When such a thing exists, it is inevitable that human judgment and biases affect its outcome. The people “in charge” decided that a gay couple had the right to have a cake baked for them, not by a baker, but by that baker. There was no allegation that discrimination was sufficiently pervasive to preclude them from or make it difficult for them to have a cake of similar quality made for them. This was a simple matter of our rights to demand your services supersede your rights to your religious beliefs.
In granting legitimacy to positive rights, society has paved the way for the obsolescence of religious liberty. This is a Good Thing and desired outcome in the eyes of statists and the modern Left, which has no use for rights that deny their ability to act as they please and to do unto others as they please. The “religious freedom” part of the First Amendment is well on its way to joining the 2nd, 9th and 10th as being on the Left’s list of obsolete, inconvenient, and in their eyes optional parts of the Bill of Rights.
As a postscript, the example of a doctor being mandated to perform certain acts that violate his ethics hasn’t happened, and abortions and (in some places) assisted suicide are legal and do take place. Therein is an example of something being accessible without requiring mandates. Respect for religious beliefs within public accommodation is similarly possible, and the Supreme Court validated this idea tangentially in the Hobby Lobby decision. It does seem, though, that the social justice warriors have no interest in tolerating anyone’s religious beliefs if they get in the way of their own agendas.
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