Remember how LGBT activists promised that same-sex marriage would harm no one and infringe on no one’s freedoms? They lied.
Christians and other nonconformists now face financial ruin and even imprisonment if they decline to participate in promoting and celebrating same-sex wedding ceremonies. Consider baker Jack Phillips and florist Barronelle Stutzman, who faithfully serve LGBT customers in the ordinary course of business, balking only at custom work that conflicts with their deeply held religious convictions. For this, the LGBT left seeks to destroy their businesses.
The Supreme Court has now taken up Jack’s case, to decide whether the government can force artists to create against their will, and whether it can compel religious dissenters and other nonconformists to participate in promoting and celebrating ceremonies they abhor.
As the duplicity of this shift from “live and let live” rhetoric to compulsory participation in same-sex wedding celebrations has become clear, LGBT activists and allies have responded with further misinformation and deception, this time about the nature and purpose of the anti-discrimination laws being misused to target religious dissenters like Jack and Barronelle. The general line is something like this: you can believe whatever you want, but if you go into business you have to serve everyone equally in all circumstances.
This claim is entirely false. It misrepresents the reality and purpose of anti-discrimination laws and ignores constitutional rights. Although there is significant variation between local, state, and federal anti-discrimination laws, none of these laws require, or could require, all business to serve everyone equally all the time. Here are five myths about anti-discrimination law—and the facts.
Reality: While anti-discrimination laws vary, none covers every business and employer. In Phillips’ case, the relevant regulations are Colorado’s rules for public accommodations such as hotels or restaurants. But not every business, or every service offered by a business, is a public accommodation.
Additionally, it is common, although not universal, for anti-discrimination laws to exempt small businesses. Other exceptions include expressive businesses, which are necessarily exempt on free speech grounds—for example, newspapers can’t be forced to publish material they object to. Likewise, religious institutions and employers enjoy broad protections from government interference, both as a matter of the U.S. Constitution and as a matter of legislature-created statutory exemptions.
Reality: Only certain classes of people are protected from discrimination, and only then in certain circumstances. Otherwise, it’s legal to turn down business, whether for complex reasons or a simple “I don’t like you.” Some artisans even become infamous for their pickiness in clients (think of haute couturiers).
A law requiring every business to serve everyone equally in all circumstances would be a terrible idea. Businesses have all sorts of legitimate reasons to turn customers away: customers can stiff a business, make unreasonable demands, harass other customers, and so on. Or, as in Phillips’ case, customers can try to force someone to create custom artistic work against his convictions. Phillips turned down a variety of custom orders over the years, and it is only the LGBT lobby that has taken him to court.
Reality: Although supporters of expansive anti-discrimination laws regularly bring up the Jim Crow regime that federal anti-discrimination law was a response to, the comparison actually weakens their case.
First, even if every anti-discrimination law in the nation vanished overnight, we would not return to Jim Crow. Legally, Jim Crow laws didn’t just allow racial discrimination, they required it. Nothing on the scale of Jim Crow would voluntarily, let alone legislatively, arise today. Nearly everyone would reject it, and most businesses wouldn’t want to lose their customers.
Even during the Jim Crow era, many businessmen would likely have eased up on discrimination to make more money, had the law allowed it. For example, after purchasing the St. Louis Cardinals, beer magnate Gussie Busch was reportedly surprised at the team’s all-white roster; excluding black players was both morally wrong and economically stupid—as he put it, “Hell, we sell beer to everyone.”
So, in the present, where no law excludes LGBT people from ordinary commerce, why do we keep arguing about wedding vendors? It is obviously because orthodox Christians don’t want to participate in same-sex weddings and are being targeted for it. But it is also because Christians don’t object to serving LGBT patrons the rest of the time—that is, any time their work is not a creative celebration of same-sex marriage. Phillips is happy to sell LGBT patrons anything he has in his shop, including regular cakes on display, but he cannot create a custom work of culinary art to celebrate a ceremony that his religion teaches him is wrong.
A few nonconformist wedding vendors like Jack don’t inflict material harm (i.e., locking people out of essential goods and services) on anyone, which is why those who want to hijack anti-discrimination laws constantly resort to a parade of hypothetical horribles like a return to Jim Crow to justify themselves. But anti-discrimination laws should be proportionate to the real injustices they seek to remedy, not those that activists can imagine. And who makes custom wedding cakes for whom does not warrant government intervention in the way that the significant material harms Jim Crow inflicted on black citizens did.
Reality: Although this is rarely stated so explicitly, this myth is constantly presumed by those in favor of government compulsion of speech and expression (as in Phillips’ case), or government interferencein the internal affairs of religious institutions. However, anti-discrimination laws are statutory law, and therefore are subordinate to constitutional law, such as enumerated constitutional rights. Local governments can’t suspend the Constitution.
Any anti-discrimination laws that abrogate the freedoms of religion, speech, assembly, and so on should be subject to the strictest of scrutiny. Artists, for instance, have a free speech right to refuse to create works of art because compelled speech or expression is by definition unfree. The religious have a right not to be forced to participate in actions they deem sinful, but instead to live peacefully in accord with their consciences.
However, as anti-discrimination laws expand in scope, there is more potential for conflict between their demands and constitutional rights. These clashes can be minimized by focusing anti-discrimination law on its core mission: ensuring that people are not materially harmed by discrimination by being locked out of essential goods and services.
Reality: This myth too is more often assumed than explicitly stated. However, anti-discrimination laws are not without their drawbacks. Not only are there are the costs of enforcement and compliance, but anti-discrimination laws are prime litigation bait, with plenty of frivolous claims filed and threatened.
Additionally, the sort of anti-discrimination laws that threaten artisans like Phillips reduce their freedom to live authentically. Forcing Phillips to craft a custom cake for a same-sex wedding ceremony alienates him from his business and his art. Such involuntary servitude makes people into things, cogs in a machine to serve the whims and desires of others.
Also, the owners of small businesses like Masterpiece Cakeshop have a closer relationship with their businesses than do the stockholders of a large, publicly traded corporation. Ironically, many of the same people who complain about “soulless corporations” are trying to wrench the soul out of small businesses if they cross the LGBT lobby, and in the process they are stripping away everyone’s constitutional rights.
These myths and sloppy thinking about anti-discrimination laws encourage disproportionate responses that restrict freedom and constitutional rights over trivial or even non-existent problems. We may not always agree with a business owner’s decisions, but we should respect his freedom to make them, absent a compelling government interest otherwise. When a class of people is systematically blocked from purchasing lodging, food, medical care, or other essential goods and services, there is a strong case for government intervention. Minor inconveniences or hurt feelings don’t present the same problem, however distasteful some may find the motivations of those involved.
Ironically, many of the same people who complain about ‘soulless corporations’ are trying to wrench the soul out of small businesses if they cross the LGBT lobby.
As a matter of law, people should generally be free to do businesses (or not) with others as they see fit, with the government stepping in to compel service only when absolutely necessary to prevent material harm. However, as a matter of culture, people should also be willing to do business with everyone, unless reasons of conscience (not simply spite) or prudence preclude it. This is the situation that generally prevails in America, regardless of the specifics of state and local anti-discrimination laws. Supporters of same-sex marriage should return to the live and let live promises they made, and respect the rights of dissenters to decline to participate in promoting and celebrating same-sex wedding ceremonies.
Those on the Left cheering as anti-discrimination law is hijacked and turned into a weapon against the First Amendment freedoms of religion, speech, and association should consider whether they really want to weaken these constitutional rights. Today it is conservative Christians having their rights eroded, but it will not end there. Political weapons deployed by one side will quickly be adopted by the other, and the Trump-led populist Right is vengeful and not particularly concerned with constitutional niceties or a culture of freedom.
Ultimately, violating constitutional rights to punish religious dissenters will harm everyone. In the case of Stutzman, the attorney general of Washington argued in that state’s Supreme Court filing that the government could compel a poet to write a poem expressing ideas repugnant to the poet’s conscience. This is straight-up totalitarianism, but look on the bright side. The Koch-commissioned “Rage Against the Machine” reunion album praising cops and capitalism will be great.