Deroy Murdock writes in Why Christians are losing the war over gay-wedding cakes for the New York Post:
In today’s Wedding Cake War, conservatives are floundering on the battlefield of religious liberty.
While this remains a central and legitimate combat zone, the Right should fight on at least three other constitutional grounds: freedom of association, freedom of speech and involuntary servitude.
As someone who always has supported gay marriage, I disagree with conservatives who would limit marriage licenses to opposite-sex couples. As a public good, government should treat gay and straight couples equally. Government bakeries, if any exist, must bake wedding cakes for anyone who asks.
But the private sector is another matter.
Murdock then defends convincingly the rights to free association, free speech, and the anti-slavery 13th Amendment (“Neither slavery nor involuntary servitude . . . shall exist within the United States”) as they relate to bakers but to businesspeople like Elaine Huguenin, “whom New Mexico’s Supreme Court ruled must photograph a lesbian wedding. (The US Supreme Court spurned her appeal.) What could be more un-American than that?”
The enemies of these basic inalienable rights resort to obfuscating the Constitution. For example, in Weighing Free Speech in Refusal to Photograph Lesbian Couple’s Ceremony, Adam Liptak reports for the New York Times:
There are constitutional values on both sides of the [Huguenin] case: the couple’s right to equal treatment and Ms. Huguenin’s right to free speech. I asked Louise Melling, a lawyer at the American Civil Liberties Union, which has a distinguished history of championing free speech, how the group had evaluated the case.
Ms. Melling said the evaluation had required difficult choices. Photography is expression protected by the Constitution, she said, and Ms. Huguenin acted from “heartfelt convictions.”
But the equal treatment of gay couples is more important than the free speech rights of commercial photographers, she said, explaining why the A.C.L.U. filed a brief in the New Mexico Supreme Court supporting the couple.
There is no “both sides”—no such Constitutional conflict—because there is no such thing as the “right to equal treatment” from any private individual or group—for gay couples or anyone else. Nowhere does the Constitution enumerate such a right. Nor is such a right implied in the Declaration of Independence and thus covered by the Ninth Amendment. Rights, properly understood, are moral guarantees to freedom of action, not moral claims to goods or services that others must be forced to provide.
Equal “treatment” refers only to the government’s relationship to the governed, in the form of equal protection of the law as established in the 14th Amendment (“No state shall . . . deny to any person within its jurisdiction the equal protection of the laws”). Government’s only purpose is to protect individual rights equally, for all people, at all times. It follows that proper laws adhere to that principle. Where is the equal protection for a baker or photographer or any businessman forced by government into speech he doesn’t agree with, association (contracts) he doesn’t voluntarily choose, and servitude against his will?
The morality of the baker and photographer is not the issue. Only the rights to speak, or refuse to speak; associate, or refuse to associate; serve, or refuse to serve—and the government’s obligation to equally protect everyone’s rights—is the issue. Just as the gay couple has the inalienable right to refuse to patronize a Christian baker or photographer or any business for any reason or for no reason, and no one has the right to force the gay couple to do so, so the Christian baker or photographer has the right to refuse service to the gay couple.
No one has the right to be served by another private citizen. Equality is a political principle, not a license to force oneself on others against their will.
There is No Parallel Between the Private Right to Discriminate Against Gays and Jim Crow Laws