‘Bigotry Motivated by Religion is Still Bigotry’—True, but Still an Individual Right

The 2013 case of a Colorado baker who refused to make a cake for the wedding of a same-sex couple—Charlie Craig and David Mullins—has reached the Supreme Court. The baker, Jack Phillips, owner of Masterpiece Cakeshop, was ordered by a Colorado court to serve the gay wedding cake after the couple filed a discrimination complaint. His attornies appealed, and the case is now before the highest court.

Here is a lengthy excerpt from a New Jersey Star-Ledger editorial titled Bigotry motivated by religion is still bigotry:

[T]he Department of Justice . . . joined the coming Supreme Court debate over whether business owners can refuse service for a same-sex couple on grounds of free speech and religious freedom. It filed an amicus brief that argues that the State of Colorado violated the rights of Jack Phillips after he had been cited for discrimination for refusing to do for two men what he does for every other affianced duo.

Longstanding Colorado state law prevents public accommodations - even bakeries - from refusing service based on marital status or sexual orientation.

Most states have similar protections, in fact. They figured that James Madison settled this a few centuries ago, when he wrote, "The civil rights of none shall be abridged on account of religious belief or worship."

The brief included such pearls as, "a custom wedding cake is not an ordinary baked good; its function is more communicative and artistic than utilitarian." Seriously. It was part of the argument that this is a First Amendment issue because baking a cake is "expressive conduct," and Phillips should not be compelled to enter the "creative process" for LGBT people.

The DOJ's other point is that Phillips' right to free religion is being violated, which is an eternally fatuous argument. Religious freedom in America means that we all have a right to our religious beliefs, but this does not give us the right to use our religion to discriminate against and impose these beliefs on others who don't share them.

Phillips is likely a sincere fellow who has strong beliefs, but a bakery isn't a church, and he's not being forced to endorse gay marriage. He's not there to officiate, he's there to make pastry.

This is not about his religious freedom, it's about people who want to discriminate against others in private transactions . . .

I left these comments:

First, let me state what I agree with: Bigotry motivated by religion is still bigotry. That’s true.

And that’s where both sides go off the rails.

This is a First Amendment issue. But contrary to the Trump Administration, this is not fundamentally a freedom of religion issue. Nor is it a freedom of speech issue. It is most fundamentally a freedom of association issue. Commercial contract is a specie of freedom of association. As a private citizen, a business owner has a right to serve, or not serve, whom he wants for any reason—just as a consumer has a right to patronize, or not patronize, whatever business he wants for whatever reason. Bigotry may be immoral. But it is an individual right, so long as the bigot doesn’t violate anyone else’s individual rights.

And the baker is not violating anyone’s rights. The Star-Ledger is half right when it says we don’t have “the right to use our religion to discriminate against and impose these beliefs on others who don't share them.” We do have a right to discriminate based on our conscientious beliefs, religious or secular. But we don’t have the right to “impose these beliefs on others who don't share them.” So, why is the state of Colorado seeking to impose marriage beliefs on that private baker, in defiance of the baker’s beliefs, on behalf of same-sex couples? And why does the Star-Ledger support that effort? The baker is the victim. Same-sex couples are free to go elsewhere. There is a fundamental double standard here. The cause of the double standard is to consider only religious convictions. What about non-religious matters of conscience? If it is wrong for religionists to impose their conscientious convictions about marriage on civil society by legally banning gay marriage, why is it not equally wrong for supporters of legalized gay marriage to impose their conscientious convictions on society by legally forcing Christian bakers to serve gay weddings? The answer is: It is just as wrong either way. Forcing that baker to serve the two men’s wedding cake means essentially making the baker their slave and the two men the baker’s masters.

Madison is right: "The civil rights of none shall be abridged on account of religious belief or worship." So why does the Star-Ledger support abridging the rights of the Baker on account of religious belief? I am a strong supporter of marriage equality. I cheered the Supreme Court ruling invalidating the barbaric laws banning same-sex marriage. I would boycott that bakery, as is my right. But I don’t get to force those beliefs on others, by government force of law—and neither does anyone else. The Star-Ledger claims to support “legal protections for every minority group.” But rights don’t belong to groups. They belong to individuals. America is a nation based on individual rights, not collective (or tribal) “rights.” Since the individual is the smallest minority in any society, anyone who violates individual rights cannot claim to be a protector of minority groups of individuals.

It’s true that “nowhere can you find the ‘art of baking’ as part of the Constitution's free-speech guarantee.” Nor can you find “the art of baking” as part of the Constitution’s free-association guarantee. But don’t forget, the same James Madison insisted on including the Ninth Amendment, which states very unequivocally, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The government should and does guarantee equal protection of the law, which includes the right to live by one’s conscience, so long as one’s actions don’t violate the same rights of others. But while we have a right to equal treatment from our government, we do not have a right to equal treatment from our fellow private citizens. Government should never be in the position of dictating which personal beliefs are acceptable, and which are not—or who we may associate with, and who we may not. That’s the path to dictatorship, including theocracy—not a free society.

The Trump Administration is Constitutionally on the right side of the issue, but for the wrong reasons. The Star-Ledger is morally on the right side of the issue, but Constitutionally on the wrong side.  I don’t like having to defend the rights of a religious bigot. But individual rights are the foundation of freedom and justice, and defending rights means defending all people’s rights equally and at all times—including people with whom one stridently disagrees.

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I want to clarify that last paragraph. When I said “The Star-Ledger is morally on the right side of the issue,” I meant on how Phillips used his judgement. Phillips of course has the moral right to act on his own judgement—even an objectively wrong or immoral judgement. Gay marriage is in no way immoral, so refusing to serve a gay couple is morally wrong, in my view. That doesn’t mean Phillips has no moral right not to serve the couple. A moral right to act on an immoral judgement may sound like an oxymoron, but it most definitely is not. A right is itself a moral principle the purpose of which is to sanction the individual’s freedom of action in a social context. A right doesn’t guarantee that every individual’s action will be moral, just that he can take the action. If my last sentence read “But individual rights are the moral foundation of freedom and justice . . .,” the insertion of the word “moral” would have at least implied the correct relation between personal morals,  moral rights, and political freedom.

I think Phillips will lose, for two reasons. His case sidesteps the most fundamental issue involved—freedom of contract, a derivative of freedom of association. Second, I don’t think the court will begin carving out religious or free speech exemptions to anti-discrimination laws. That will open up an enormous can of worms. (Nor should they. I give my reasons against special carve-outs here, and present opposing views here).

I’ll address some comments made in rebuttal to my post next.

Related Reading:

Gay Marriage: The Right to Voluntary Contract, Not to Coercive “Contract”—My article for The Objective Standard

Court Violates Cake Baker’s Right Not to Serve Gay Weddings—Ari Armstrong for The Objective Standard

Moral Rights and Political Freedom—Tara Smith

Arizona Governor's "Religious Freedom" Veto Was the Right Move

Two Views on Religious Exemptions from Anti-Discrimination Laws