Manuel S. Klausner
Libertarians generally take a “live and let live” approach, advocating freedom of association rather than anti-discrimination mandates. Additionally, a key aspect of libertarian politics is a commitment to choice and consent in personal and professional relationships.
This approach is embodied in the 2016 Libertarian Party Platform, which reads: “Libertarians adhere to the concept that all people are born with certain inherent rights. We reject the idea that a natural right can ever impose an obligation on others to fulfill that “right”. ‘We condemn bigotry as irrational and repulsive. The government must neither deny nor restrict the fundamental rights of an individual because of their gender, wealth, ethnicity, beliefs, age, national origin, personal habits, political preferences or sexual orientation. Members of private organizations retain their right to establish the standards of association they deem appropriate, and individuals are free to respond with ostracism, boycotts and other free market solutions. “
During his 2016 presidential campaign, candidate Gary Johnson unexpectedly said in a debate not only that a Christian baker should be forced to design a cake for a gay wedding, but also that a Jewish baker should be. forced to bake a cake for a Nazi wedding. Other party members criticized this rejection of the principles set out in the LP platform, but Johnson refused to change his position. It hurt him with his base, as many libertarians viewed his claim as flawed and untenable.
Underlying the libertarian perspective on this issue is the recognition that in a market economy there is an intrinsic financial deterrent for a baker to refuse to sell to a potential customer. As support for same-sex marriage increases in America, it becomes increasingly unlikely that same-sex couples will have serious difficulty finding a florist or baker for their weddings. When a salesperson turns down a couple, many others line up to win that couple’s business. The economic damage falls squarely on the person with moral qualms.
There is no doubt that emotional harm can result from refusing a business establishment because of who you love. But surely there is also harm when an American is forced to participate in an event that is contrary to his or her deeply held beliefs. A voluntary and market-oriented approach is the best way to reconcile competing interests in such situations.
Reason Foundation filed a friend brief with the United States Supreme Court in the case Masterpiece Cakeshop v. Colorado Civil Rights Commission. Like most libertarians, we believe that sellers should not be required by law to design and sell custom products for same-sex marriages to which they have conscientious objections.
Reason has promoted same-sex civil unions since the 1970s, long before they received widespread support. But we have always insisted that the law respect the views of minorities, and as libertarians we oppose the use of coercion to force the private sector to comply.
Support for same-sex marriage in the United States is at its highest level since the Pew Research Center began polling on the issue in 2001. In 2017, more than six in 10 Americans supported same-sex marriage; only 32 percent opposed it. Today, the small number of business owners who oppose the provision of services for same-sex marriages are the minority whose rights must be protected.
In June, the Supreme Court ruled 7-2 in favor of Masterpiece Cakeshop’s Jack Phillips based on the Colorado Civil Rights Commission’s apparent hostility to his religious views. In the majority view, Judge Anthony Kennedy noted that the commission had allowed at least three other bakers to refuse to provide cakes expressing feelings against same-sex marriage, even though it threw the book at Phillips for not wanting to use their artistic talent to approve a same-sex marriage.
Yet the ruling did not resolve this issue once and for all in favor of business owners with moral reservations. It left open the possibility that laws requiring bakers and florists to participate in wedding celebrations against their will could be upheld, as long as the state or city enforced the regulations impartially.
“A voluntary and market-oriented approach is the best way to reconcile competing interests.”
No one could credibly argue that same-sex marriage in Colorado is threatened by Phillips’ religious beliefs. But freedom is threatened, both by the authoritative conduct of the Colorado Civil Rights Commission and by Justice Kennedy’s shortsighted opinion.
If and when this question comes up to the Supreme Court, judges should invoke the First Amendment twin protections of expressive speech and religious freedom to convincingly support the tolerance of unpopular views in a pluralistic society.
The freedom of expression clause, which the Supreme Court has long supported, protects freedom do not to speak as well as the freedom to speak. And this freedom not to speak must include the freedom not to create speech and not to participate in the speech of others.
A freelance writer should not be required to write press releases for the Church of Scientology, even if they are willing to work for other religious groups. A musician shouldn’t be forced to perform at Republican-themed events, even if they perform at other political events, and even in a city (like Seattle or DC) that prohibits companies from discriminating based on their position. political affiliation. Likewise, a photographer should not be required to create photographs celebrating a same-sex marriage, and a wedding singer should not be required to sing at such a celebration.
But this right must have its limits. This is a freedom of speech clause, not a freedom of action clause, and courts must therefore distinguish between speech (and a limited area of symbolic expression that is basically tantamount to speech) other behaviors.
The free speech clause does not give a limo driver the legal right not to drive a couple to their same-sex marriage. It does not give a chef the right not to serve certain people in his restaurant. Subway calls its sandwich makers “sandwich artists,” but that does not give it the right under the free speech clause to discriminate between potential patrons of these arts. The same is true of bakers, even those who create beautiful cakes for weddings. It is generally constitutional – whether or not wise or fair – that the law compels behavior, and only a small subset of these constraints violate freedom of expression.
Courts have recognized the need to distinguish speech from conduct when it comes to restrictions on expression, and the Supreme Court has rejected “the view that a seemingly limitless variety of conduct can be characterized as ‘speech.’ whenever the person engaging in the driving intends to express an idea thus. “A city would violate the First Amendment by limiting, for example, the number of independent newspapers or writers who can operate there. But a city would violate the First Amendment. city may limit the number of butchers or taxi drivers – misguided as these regulations usually are – because these activities are not treated as talking.
The same goes for restaurants or bakeries, even those that create beautiful dishes or beautiful cakes. And if a restriction on the ability to bake is not a restriction on speech, then the requirement to bake (even for ceremonies that one disapproves of) is not a constraint on speech.
Now, to require a baker to bake a cake that had pro-same-sex marriage text or some pro-same-sex marriage token – pictures of two newlyweds or a rainbow pattern, say – would indeed be a speech. strength. But in the Pastry masterpiece case, the baker apparently refused to bake a cake for a same-sex marriage, without even discussing the design. It is a refusal of do, not a refusal to speak.
It is also not enough that wedding cakes are meant to look good. Hairstyles are also aesthetic and can convey links to particular attitudes. But a barber who, for example, refuses to do cornrows for a white client or refuses to cut a woman’s hair in what he considers an evil masculine style cannot claim First Amendment freedom from coercion. word. For every Masterpiece Cakeshop, there is a Masterpiece Hair and a Masterpiece MD plastic surgeon, and even a Masterpiece Limousine and a Masterpiece Plumbing (all real trade names). The freedom of expression clause does not protect them all.
Certainly, if you think religious objectors should be presumed exempt from generally applicable laws – for example, under the free exercise clause – you might think this covers bakers who think it is sinful to bake cakes. for same-sex marriages. (This would then raise difficult questions about when the presumption of religious exemption can be rebutted.) But the Supreme Court ruled that the free exercise clause does not guarantee such a right; this provision generally only protects against willful religious discrimination by the government. (The Court in the Pastry masterpiece The Federal Restoration of Religious Freedom Act (RFRA), which allows some of these exemptions, does not apply to state laws. And Colorado doesn’t have its own RFRA.
Our Constitution is not a libertarian document. It is a document that creates a charter of democratic government, with some protection for specific individual freedoms, but generally in specific and identified areas. The freedom to speak – and not to speak – is included. But these freedoms don’t cover everything, and they don’t cover cake making.