Both Sides In the Gay Wedding Cake Case Are Missing One Major Point

P. Gardner Goldsmith | December 6, 2017
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People such as John Locke and Thomas Jefferson explained that “justified” governments are supposed to protect life, liberty (freedom of consensual interaction), and property ownership (the pursuit of happiness).

The idea is that you have a right to your life, to live and interact peacefully, and to own that which you earn and use to support your life. Likewise, it is understood that when you ask others to recognize that right, you afford them the same respect. When government begins to infringe on those rights, and commits the very act which it is constitutionally obligated to stop or punish, it is illegitimate, and, as Jefferson said, people have a duty to overthrow it.

By looking at the size, scope, and growth of federal, state, and local governments, one can see how far astray they all have gone. Here's one perfect example: Tuesday’s oral arguments in the Supreme Court in the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

The condensed version of the issue goes like this: In 2012, two gay men approached Jake Phillips, a baker in Lakewood, Colorado, who owns Masterpiece Cakeshop. The two men wanted to pay Mr. Phillips to make a cake for their wedding. For religious reasons, Mr. Phillips objected (and still objects) to same-sex marriage, and he declined.

The state of Colorado charged him with a civil rights violation of “discrimination,” an act that broke the state’s public accommodations law, which is based on the federal definition of a “public accommodation” from the 1964 Civil Rights Act, and expands on the act by adding sexual orientation to the federally covered minority statuses such as race and religion.

The Colorado Civil Rights Commission ordered Phillips to change his policy, force his employees to take “anti-discrimination training” courses, and offer quarterly reports for two years detailing his compliance with the command.

Regardless of one’s position, the arguments in the U.S. Supreme Court – both for and against Phillips’ choice – reflect how little room the government allows for freedom, and, perhaps, how little people really care to respect their neighbor’s right to control his or her life, skills, time, and property. In fact, pretty much everything that was said in that vaunted hall of “justice” was shadow puppetry designed to distract from the source of the flames and heat.

Phillips’ attorney argued that the baker has a right to decline the work on free speech grounds. Phillips’ cakes are artistic, they said, and, as such, he employs his right to free speech when declining to decorate a cake that represents something of which he does not approve.

That's when big-state boosters Elena Kagan and Ruth Bader Ginsberg jumped into the fray. As Jeffrey Toobin writes for “The New Yorker,” Kagan scored some points because the attorney for Mr. Phillips did not remain consistent about what constituted art:

Justice Ruth Bader Ginsburg started the line of attack, by asking if a person who designs wedding invitations is also an artist, who could refuse to do business with gay customers. Waggoner hedged, and Kagan jumped in. What about the jeweller who designs the rings? “It would depend on the context,” the lawyer responded. But Kagan was just warming up. What about the hair stylist? An artist? “Absolutely not,” Waggoner said. “There’s no expression or protected speech in that kind of context.” Kagan asked, “The makeup artist?” Not an artist, Waggoner said.

Not a good answer. But this entire line of argumentation is typical of how statists dance around the core of the issue, missing the forest for the trees.

The point has nothing do to with the stage play of whether or not a cake decorator is an artist who has a “constitutionally protected right” to express himself or not express himself as he sees fit. That’s manifest. And it’s not about whether “makeup artists” are, or are not, artists who do, or do not, share the same right.

The point is that the “Public Accommodations” portion of the 1964 Civil Rights act, as well as the Colorado statute expanding on it, both destroy the meaning of the words “public” and “private.”

"Public" places are owned by the government, and are those on which taxpayer money is spent, not simply any establishment outside of a residential home. On the other hand, "private" property is that which people acknowledge as being owned by individuals. But the Public Accommodations portion of the 1964 Civil Rights Act stipulated that anyone who opens his or her private property for market interaction is turning it into a “public” place. This has demolished the meaning of private property, the ability of people to peacefully utilize it as they see fit.

So, despite the baker engaging in a private enterprise, he is seen by many contemporary Americans as opening himself not just to the decisions of consumers, but to everyone, everywhere in the U.S., and the dictates of how he will conduct himself will be commanded by politicians, not consumers who can freely withdraw their money. He will be punished by the state, not individuals making their own choices.

But the freedom of association, like the freedom of speech, means one must be able to exercise the right to not associate, or not speak. As MRCTV’s Brittany Hughes noted to me:

If a baker can be forced to bake a cake, and therefore "say" things he doesn't believe through his art, what's to stop the government from forcing Christian ministers to verbally officiate gay weddings? We often think of free speech as the ability to say things, but isn't it also the freedom not to say things that we don't want to?

Great point. And there is a key economic point to be made here, something to rectify a common misperception among many in the U.S. and the world. Rooted in the “Public Accommodations” dictates is the thread of a noxious Marxist myth that, somehow, the business people are “exploiting” consumers, that consumers are in a less powerful position than the sellers. Yet, anyone who studies economics knows that market exchanges are just that: trades, done with mutual consent, on equal footing. In fact, one could argue that since the seller needs the consumer to buy his or her product or service, while the consumer can usually go elsewhere, the consumer is in the stronger position.

So then, why don’t politicians pass laws forcing people to buy things without “discriminating”? Why don’t they pass laws to “protect” sellers from those rapacious buyers who are always trying to get their products for less and less?

Let’s set the record straight. Entering the “market” does not mean you give permission for the state to tell you how to engage in your peaceful transactions – either as a buyer or a seller. The principle is the same. If you enter the “dating market,” does the state have the “prerogative” to tell you that you cannot "discriminate against” anyone who asks you out?

We all “discriminate.” In fact, the only reason human beings survive is because of their ability to discriminate, to decide what one wants and doesn’t want to buy, sell, or do with the precious time he or she is given on the earth.

The arrogance of politicians and judges, social justice warriors and elitists who would tell us that we cannot decide for ourselves how to decide what to do with our professional skills is no different than slavery. And no amount of Supreme Court jousting can change this fundamental principle.

Word is that Justice Kennedy appeared to sound sympathetic to the baker’s plight, so the Court might rule in his favor. But it will not do so on principle, for that would call into question every single state and federal imposition on businesses for the sake of politically defined “fairness,” including the Public Accommodations section of the ’64 Civil Rights Act.

But at least we can watch them create their shadow puppets, and recognize the source of the problem.