The Separation of Coherence and State
[UPDATE below.]
On Facebook I follow George Takei (“Lt. Sulu” from the original Star Trek series) because he’s pretty funny, but mostly because I loved that show. Unfortunately Takei applauded the Oregon judge who ruled against the Christian bakers, and put the hashtag #SeparationOfChurchandCake.
Upping the ante, one of Takei’s fans posted this in the thread without further comment:
This is all so muddled it’s hard to know where to start. The traditional notion of “separation of Church and State” comes explicitly from an 1802 letter from Thomas Jefferson to the Danbury Baptists. Here’s the key paragraph:
Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.
Thus Jefferson with this phrase–and the drafters of the First Amendment to the Constitution–was putting a brake on what the State could do. These men were trying to protect the individual’s free exercise of his or her religious beliefs from political interference.
Things have now been turned inside out, with the State forcing people to violate their religious beliefs. There is clearly no duty owed of baking a cake; if the bakers had decided to retire, and thus fail to provide the gay couple with a cake, nobody would have batted an eye. But it was because their action was motivated by a particular religious belief that it violated the State’s rules.
Although Takei and some of his fans were confused on this point–and by the way, I realize he was cracking a joke with the hashtag, but he still is confused about what it means to live in a free society–I was glad to see that many others weren’t. Indeed, several people chimed in along the lines of, “I’m gay and it saddens me to think there are so many people who don’t want me to have the right to marry the person of my choice, but the government has no right telling owners how to run their business. This won’t help us.”
UPDATE: In the comments someone challenged my statement that “it was because their action was motivated by a particular religious belief that it violated the State’s rules.” I admit I didn’t word that in the most understandable way, but here’s what I meant:
==> Suppose the bakers had told the potential customers, “You know, thanks for the business, but about 6 years ago we both decided that as store policy, we weren’t going to do wedding cakes any more, period. The people are just too stressed out with those ones. It’s either Bridezilla coming in, biting our heads off, or the soon-to-be sap husband who’s trying to placate Bridezilla, know what I mean? So in the interest our sanity, we just decided no more wedding cakes. But here are three addresses of our colleagues within 5 miles of here who’d love your business.”
Would the above be illegal? I hope not, and in any event I doubt a customer who had a wedding to worry about would bother suing them, rather than drive 2 miles to the next bakery that would love their business.
==> Suppose the same gay customers wanted a birthday cake for a co-worker. Would the owners have refused on the grounds that “We don’t make cakes for your kind”? I don’t know this particular incident, but I know I’ve read similar accounts where the owner(s) explained they had no problem serving gay customers in general, but rather it was the idea of making money by facilitating something that violated their religious views on the institution of marriage.
==> So in light of the above two points, I hope it’s clearer why I said that the specific reason this was illegal was that their reason for failing to perform the action was a religious one.
I follow him too, and it caused me to roll my eyes when I saw that post.
Oh, you mean some hollywood moron doesn’t understand historical context *or* basic human rights?!
Shocking. 🙂
Technically the First Amendment is a restriction on Congress only and does not apply to the states, though nobody seems to read it that way.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
But forcing someone to provide a product or service, seems to me, violates the Thirteenth Amendment.
“Section 1.
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2.
Congress shall have power to enforce this article by appropriate legislation.”
Russ,
The Fourteenth Amendment to the United States Constitution
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Yes?
Is not the argument being made that the citizens shall be immune from discrimination and that the privilege of the business owner to choose with whom he does business does not supersede the privilege of the customer to be treated equally and there by be sold a cake the same as any other paying customer?
I assume you bring up the Fourteenth amendment because it says ‘privileges or immunities’? If that is the case could you please define what precisely the privileges are and also what precisely the immunities are?
It seems to me that the ambiguity of the Fourteenth Amendment lends itself to the arguments of all sides.
The law does not force baker’s to provide a service. Rather its says that if someone chooses to provide a service, he or she cannot discriminate against gays when doing so.
Wait, if that bumper sticker was predicated on logically consistent grounds, then its supporters must support this idea:
“YOUR government belongs in YOUR church and YOUR home, not in OUR religion.”
Oh that’s right, my bad, THEY want THEIR government in OUR churches and OUR homes.
I have an idea.
We should start telling the thugs and criminals that anarchism is a religion. That religious expression, provided it does not violate the homestead (property) rights of others, must be unhampered and unfettered by state law.
If Christian churches can operate tax free, then so should anarchism.
No way Jose, anarchism violates the governments right to our life liberty and property. We would be lucky if they granted us the right to wear the hat in our drivers license (which is also against my religion) photo. We should start telling the thugs and criminals that they can have everything inside the belt-way, that’s theirs and they can take their throng of drooling supplicants with them. Imagine, parasite feeding off of parasite, growing weak and frail and finally ** * *_______________________. Ahh, but it was all just a dream.
I’ve said it before but gays (and every minority) should familiarize themselves with the operation of Democracy. Believing that the hammer of the State will come to the aid of a non-key voting demographic has been a disastrously bad move for many minority groups in the past.
Socialism cannot be tolerant of difference. Big government exists to serve itself and for no other reason.
“But it was because their action was motivated by a particular religious belief that it violated the State’s rules.” Is that actually right? right to me – wasn’t it because it violated the rights of the gay couple not to be discriminated against? From what you are saying, if the baker had not wanted to provide the cake because he was a Nazi rather than a Christian, then that would have been OK. Surely that is not the case.
As far as I am aware, there is no such thing as a “right to not be discriminated against”; at least, in the natural rights view of things.
Yeah, it was a kind of short-hand. However, not everyone believes in a natural rights approach to these things. From a legal perspective, you have a right not to be discriminated against for certain things in certain situations.
Yes but it’s nonsense. If a business or employer can not discriminate based on sexual orientation then how come gays can.
I don’t believe a gay or straight business owner or employer is allowed to discriminate on the basis of race, sex, sexual orientation, disability or religion. I don’t think there is any difference.
I believe your ethics are based on contradictions.
Traders who pay money and accept goods should be able to discriminate “badly”. The law says they can. You believe they can.
But traders who pay goods and accept money? Evil!
It’s ridiculously illogical.
I like to see you crusaders of false justice imagining laws against discrimination in a barter only society. Hahaha. Who must we arbitrarily single out anticapitalistically! Ooh ooh! I know! We have to regard discrimination as evil when what is traded are barter goods for labor….and yeah…only the guy offering the barter goods is the evil one…the other guy? Free pass!
MF, you are going off the deep end today. My message clearly says in a legal perspective. Therefore my ethics do not enter into it. I believe the law treats a gay baker the same a Christian baker, in that neither is allowed to refuse service based on one of the things the law says they must not discriminate against.
In my view whether the law is morally correct will depend on the situation, but that is a whole other argument.
Response to the update. it is legal to serve anyone or anything as you wish, except for a few specific exceptions, such as sexual orientation, race and gender in some situations. So if you say you don’t do wedding cakes, then that is fine.
Second point, as far as I am aware, there was no issue serving gay people per se. It was the occasion that was the problem. This occasion conflicted with their views which happened to have a religious basis.
So the reason this was illegal was that their reason happened to be a religious one. I think it is incorrect to say that it was illegal because it was religious. It would have been just as illegal if their reason was exclusively racist or homophobic.
If a Christian couple asked a gay baker to bake them a cake and the gay baker refused, that would be illegal wouldn’t it? Or am I mistaken?
No, it would not be illegal it would be fabulous!
Just to be clear, if a Christian couple asked a gay baker to bake them a cake and the gay baker refused because he did not serve Christians, that would be illegal, wouldn’t it? If so, why hasn’t Bob been protesting this major violation of libertarian orthodoxy?
Do you have a specific case in mind? I mean, obviously he would oppose forcing anyone to serve anyone else if they didn’t want to. Do you think he should be protesting every hypothetical violation of the right to free association? Seems time consuming.
Show me an example of that happening senyoreconomist. I mentioned a while ago an example of a Christian asking a baker to make a cake saying “God hates gays” or something, and I went out of my way to say (a) I hoped the Christian didn’t really believe that and was merely making a point about how stupid the laws were and (b) I stressed that even the God of the OT doesn’t hate sinners, but sins, and so if He hates gays then He hates all of us.
All this time, you guys really don’t even think I’m sincere in my belief in property rights against the State? This is all a big sham to favor my particular preferences?
I think you are completely serious and consistent. I do, however, get sick and tired of everyone jumping on gays because of incidents like this. It is not legal for gay bakers to deny a Christian couple a cake if the gay bakers don’t like Christians. (Am I wrong?) Yet, I see no protest against this state of affairs. The reason there is no example to give is that it has been illegal for so long that people would not think of doing it or at least not do it blatantly or they don’t want to do it. For the record, as personal ethical matter, I don’t think that gay merchants should deny Christians cakes and vice versa. As a gay person, I find it ironic that everyone is going , “Oh look at the gays, they want special treatment” while the Christians or any other religious group is already protected. If it turns out that a gay baker legally could deny a person a cake because the gay baker did not like said person’s religion then my case would fall and my gripe unfounded. But I don’t think that I am wrong on that.
In other words, I think it is kind of hypocritical when everyone goes, “oh look at the gays wanting special treatment…” When the group discriminating against them has protection under the law against being discriminated against. (As I said before, if it is not illegal to discriminate on the basis of religion, then my case and gripe falls.)
Finally, I do not think you hate gays. (You follow George Takei on Facebook for crying out loud.) I think you are a fine person and I like your site. However, there are peole in the libertarian movement who are not so open minded.
“However, there are peole in the libertarian movement who are not so open minded.”
I freely choose not to associate with such people.
It’s not hypocritical if the people who are complaining about forcing Christians to bake cakes against their will for gay weddings also oppose forcing anyone to provide a service against their will for any reason. Who are these people that are against forcing Christians to bake cakes for gay weddings, but don’t also oppose forcing gays to bake cakes for Christians? It’s certainly not the libertarians commenting here.
Not for any reason. Only for those that are ” subject to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare…” Obviously if you do not believe the state should have such power you will not approve of these regulations.
I’m saying it’s not hypocritical to oppose forcing Christians to perform services against their will as long as you also oppose forcing anyone else to perform services against their will. The constitutionality of those laws is irrelevant to me. I’m speaking solely on the logical consistency of libertarians when it comes to issues like this since it was implied we are being inconsistent when we speak out about cases like this one.
OK, I agree.
If it turns out that a gay baker legally could deny a person a cake because the gay baker did not like said person’s religion then my case would fall and my gripe unfounded.
OK, but that’s not really analogous to this situation. The Christian bakers weren’t saying, “We aren’t going to bake you a cake because you’re atheists” (or Buddhists or Jews or whatever). They were implicitly saying, “It is against OUR religious beliefs to endorse gay marriage, so we can’t participate in this.”
So, e.g., if a gay baker refused to bake a cake for a circumcision party because he thinks that’s sadistic and it offends his sense of morality, that would be more analogous. And I hope it wouldn’t shock you to learn that I would be totally on the side of the gay baker if the State fined him for not helping to celebrate an event that he found immoral.
Most Christians don’t go round deliberately being antagonistic when there’s no good reason to do so, in the name of activism or publicity for the cause or whatever… then running to the courts at the first sign of any reaction.
Essentially what we have here is the gay version of the Westbro Baptist Church.
My take is that if you have anti discrimination law, then this must be ruled discrimination. If you do not like such laws, then you will not like supporting them in this way. My non-expert opinion is below.
It is not illegal to discriminate for any reason not specifically protected by law. So you can discriminate against the tall, the short, blondes, pretty people, ugly people – possibly even people from Wisconsin. You cannot discriminate against people based on their race, gender, disability or sexual orientation. I wasn’t sure about religion, but apparently* it is also protected.
This means that the baker could be prosecuted for refusing to serve a Christian, but he could not be for refusing to serve anybody with blue eyes. (Actually, that could be indirect racism, so maybe he could. Anybody whose name contained the letter b.)
You are, I believe, also specifically permitted to practice your religion without interference from the Govt.
So when someone says they must discriminate against members of the protected groups in order to practice their religion, there is a conflict.
There must be some mechanism to decide who has the stronger case under the law – protection from discrimination or the protection from interference with the practice of religion.
In the Masterpiece case, the court ruled that “Only same-sex couples engage in same-sex weddings. therefore, it makes little sense to argue that refusal to provide a cake to a same-sex couple for use at their wedding is not “because of” their sexual orientation.” So that refusing to serve the cake was a breach of the anti-discrimination law. They cited Justice Scalia “some activities may be such an irrational object of disfavor that, if they are targeted, and if they also happen to be engaged in exclusively or predominantly by a particular class of people, an intent to disfavor that class can readily be presumed. A tax on wearing yarmulkes is a tax on Jews.” They specifically distinguished this from baking an offensive cake, such as a racist message, where “it is the explicit, unmistakable, offensive message that the bakers are asked
to put on the cake that gives rise to the bakers’ free speech right to refuse.” It was important that the refusal was issued before the details of the cake were discussed at all.
Having established that the law had apparently been broken, it remained to determine if the baker was protected by the rights to free speech or practice of religion. Basically, a cake is not speech, particularly as the details had not been discussed, so free speech was not violated. On the practice of religion, “the Supreme Court has held that “activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare…Respondents’ refusal to provide a cake for Complainants’ same-sex wedding is distinctly the type of conduct that the Supreme Court has repeatedly found subject to legitimate regulation.”
It is not sufficient just to say that your religion stipulates you must do something to override the discrimination law . You could say your religion prevents you hiring black people, and there goes race discrimination protection. To permit such would make everybody a law unto themselves.
So there was no protection from that source, and the baker was deemed to have acted illegally. I do not see why there would be a different outcome if the baker had been discriminating against a Christian because he was a gay or a Jedi or something.
*according to the Dept. of Justice : “The Civil Rights Division of the Department of Justice enforces federal statutes that prohibit discrimination based on religion in education, employment, housing, public accommodations, and access to public facilities. In addition, the Civil Rights Division prosecutes bias crimes committed against individuals because of their religion”
Judgement here
https://www.aclu.org/sites/default/files/assets/initial_decision_case_no._cr_2013-0008.pdf
The freedom of association also implies the freedom of disassociation. The Christian bakers who refused to serve a homosexual couple were within their rights to do so. Likewise, a hotelier or restaurateur should be allowed to refuse service to racial groups if he so chooses – for whatever reason – whether religious or not. I view this as involuntary servitude if some are forced to work for others in spite of their desire to not do so.
As everyone on here knows I think Christianity, and all religions for that matter, are unsupportable due to lack of evidence. That in no way gives me the right to force my beliefs, or lack thereof, on anyone else. The State shouldn’t pick sides – people should be free to behave, in my mind, stupidly.
This is thought crime – pure and simple – and seeking to force these PC beliefs on the Christian bakers is disgusting.
Since when did “freedom of religion” become a right to legal immunity? In other words you can do whatever your religion says and the law can’t tough you? Certainly the better argument is whether people should have a right to choose who they will and won’t serve in their own private business.
And, since you made your view clear that you were not cherry picking and you were not cherry picking due to homophobia, I apologize for taunting you when I said, “If so, why hasn’t Bob been protesting this major violation of libertarian orthodoxy?” I think you are a fine individual and I like your site.
OK thanks. I’m sure I’m biased on some issues, but it really surprised me that you seemed to think I would be OK with the State doing anything to business owners, regardless of religion.
(the above is addressed to Bob Murphy.)
These rulings are primarily rulings against freedom of association for owners and employers, and are only secondarily about sexual orientation. Note that it is still perfectly legal to refuse to work for gay bakers and to refuse to buy from gay bakers. In fact, boycotting businesses because of their moral positions is a common tactic. And for that matter, it is still perfectly legal to disown your gay child or to distance yourself from your gay friend.
So, these civil right rulings are only applied when the antagonist is a business, and if this type of prejudice is aimed at businesses, they receive no support from the state. And, outside of commerce, explicit, ugly, harmful prejudice is tolerated.
The evolution of civil rights issues in this country is much like the evolution from the war on poverty to the battle over inequality. Increasingly, these issues that began as positive social mechanisms to support marginalized citizens are becoming stalking horses used to inflict their own form of bigotry. What’s interesting is that because this bigotry is so universally and proudly held, it is stated quite explicitly. Think of the anti-Citizens United movement, which explicitly seeks to roll back applications of the Bill of Rights. And the slogan “Corporations aren’t people.” seen in this light couldn’t be more explicit.
The more I think of it, really this is about the state pretending to an integral and irreplaceable part of the wave of social changes of the last decade. The change has been happening, in spite of the state. No law reversed the opinions of the majority of people on gay marriage. Obama’s fumbling path toward marriage rights for gays was clearly timed to take the most advantage of that changing climate, and not as an instigation of that change. He was solidly against it in 2008, when it would have hurt his presidential campaign. Incidents like this only encourage people to keep their heads down and their mouths shut, lest their thoughts be used to punish them.
Unfortunately, no one but us bat sh*t crazy libertarians sees anything wrong when the state drops into the picture to dispense some violence. Everyone is going along fine, not necessarily agreeing, but peacefully interacting, gaining in understanding and acceptance, and in walks the government with a baseball bat swinging because someone raised their voice. As libertarians, we cringe first because someone just had their head bashed in, then again when the people all around start clapping.
So, a Jewish butcher shop should be forced to butcher a pig.
Everyone discriminates. Everyone makes choices on who they want to deal with and who theyndo not want to deal with based on a myriad of different reasons. That is discrimination.
What most people talk about when they talk about discrimination being “bad” is quite particular. They mean that those who own private property, that is, property used for the purposes of production, then it is a “bad” if the owner of said property chooses to allow certain people but not others, to use his property. The “bad” reasons to discriminate are race, gender, ethnicity, and sexual orientation. What are “good” reasons to discriminate are laziness, idleness, low skill, more or less what it means to be a non-ideal worker based on merit. Then there are some extreme cases of what would logically seem to be “bad” reasons to discriminate but is allowed due to commonly accepted reasons: excluding neoNazis, gangbangers, KKK, etc.
For me I prefer logical consistency, since that is how we ensure improvements in justice. If we can permit a homeowner to discriminate among visitors for reasons such as race, gender, ethnicity, sexual orientation, etc, then justice demands that we permit private property owners to do the same. They should be allowed to tell me to go f off for hating my race (it’s happened a couple of times in my life, I don’t care because I don’t believe I have a right to what they own).
Discrimination has different definitions. The on line dictionary has it as:
1. the unjust or prejudicial treatment of different categories of people, especially on the grounds of race, age, or sex.
2. recognition and understanding of the difference between one thing and another.
So differentiating between things does not necessarily mean discrimination according to definition 1. Nobody argues that definition 2 is in any way unjust or wrong.
When you say “justice demands” I think you mean “sticking to my preferred basis for doing things” demands.
Just is defined as “based on or behaving according to what is morally right and fair.” It is a reasonable argument that irrational discrimination is not morally right and certainly not fair.
” It is a reasonable argument that irrational discrimination is not morally right and certainly not fair.”
Maybe, but the policy used to enforce fairness on this is unquestionably evil. It’s called slavery.
Not by most people
So if most people thought otherwise, THEN the actual relationship, the actions, the pains and sufferings, the plans vanquished and the plans freely acted upon, all that would suddenly change?
What “most people” think is neither the foundation of truth for science and morality, nor is it safeguarding of the minority’s individual rights.
Not to most people…sheesh. As if slavery can ever be justified that way.
If the comment was “it is slavery” I might agree with you. It was “it is called slavery”. That implies it is commonly called such, suggesting a common understanding that this is slavery, which is not the case. It is also true that it does not actually state that it is slavery, or that state that it is usuallycalled slavery. Equally my comment did not actually state that it was not slavery, nor that it was not ever called slavery.
Harold:
“When you say “justice demands” I think you mean “sticking to my preferred basis for doing things” demands.”
Since when was justice, and what a person wants, incapable of being identical?
Are you suggesting that if I want X, then by definition it cannot be just?
Has it ever occurred to you that maybe, just maybe, what my preference is was chosen on the basis of justice grounded on something other than “Gee what do I whimsically feel like today?”
I think you are making a false assumption regarding justice and human preferences, which looks very much like a Kantian ethic where the only good morality is that which you have an inclination NOT to do, and that you really did not intend to underhandedly accuse me of misrepresenting the motivation for why I believe justice demands what I believe it does demand. If you think I am wrong about it, then I am all ears. Please try to refrain from accusing me of being deceitful, unintentionally or otherwise.
Your referencing to the dictionary definitions is consistent with the argument I am making. I said everyone discriminates. You did not dispute that.
“Just is defined as “based on or behaving according to what is morally right and fair.” It is a reasonable argument that irrational discrimination is not morally right and certainly not fair.”
Since when was it “irrational” of people to want more from what people stand to offer other than material productivr, merit based productivity? It is not irrational for me to choose to, for example, sleep with women based in part on their articular race, height, build, hair color, length, etc. It is not irrational of me to choose on that basis. What you call irrational and unfair is nothing to do with you, nor does it CREATE victims of aggression.
I do not aggress against women for not sleeping with them (although it might be considered a “crime” lol).
Individuals,making choices that benefit them, which do not create any victims of aggression, is neither fair nor unfair. It is a personal choice for my body and property that does not aggress against anyone. Fairness plays no role here.
Your definition of fair and immoral are ex post rationalizations for what you regard as what I ought to do based on your warped collectivist morality that sacrifices some individuals to others. In your ethics, if I use my own body and property in non-aggressive ways that you don’t approve of, I have committed a crime and must be subjected to physical force from the holy crusaders of your fair world ideology.
Sorry, not buying that Cleveland steamer.
MF “Since when was it “irrational” of people to want more from what people stand to offer other than material productivr, merit based productivity?” This is possibly a key area where I don’t understand your position. Do you deny that irrational discrimination is possible? Mises and Rothbard as I understand it deny that action can be irrational. Action merely is, and whatever basis it has, the action itself is not irrational. It merely demonstrates the individuals preference at that moment.
However, if the basis for the action is irrational, then I would say the behaviour (as distinct from the action) may be irrational.
For example, phobias are defined as irrational fears. Fear of tigers is not a phobia, fear of feathers is. Given a feather phobia, it is then rational for an individual to avoid feathers. However I would say the feather avoiding behaviour is irrational, even though the action of avoiding feathers was not.
It seems that if you deny the feather avoiding behaviour is irrational, you have just hand-waved away what most people accept as a very useful concept- i.e. irrational behaviour.
If you accept that irrational behaviour does exist, although action itself is never irrational, then it seems to me that the concept of action is not very useful, since it is through behaviour rather than action that we interact with the world.
This is something that I have not yet understood about your approach.
We have already had a case of a wedding organiser/ venue directing homosexualls to another buisness and still getting sued. They are targeting Christians specifically for the purposes of the lawsuit. We have also had an attempt at an incestuois couple trying to sue but the magistrate threw that one out day one. I’m in Australia. There are a few cases, EU, where people have acquiesced only to have the marriage cancelled because it did not result in the desired, highly public, lawsuit.
Gay bakers have already told inquirers that they won’t pipe a pro-tradtional message on a cake for a political meeting. If they can object to a message they don’t like, why aren’t they being prosecuted? It just reveals the one-sidedness of today’s political correctness. A better term is fascism.
If you look at my other comment about the judgement in one case, you will see that writing a particular message comes under the category of “speech”, and thus you have a free speech defence. Baking a cake with no specified message was not considered speech, so you would have no such defence.
Treating this as merely a question of whether a baker should be free to bake or not bake a cake entirely misses the point of the law in question—which is to prohibit owners and operators of businesses from discriminating against people based on their sexual orientation. If, as Murphy hypothesizes, a baker retires or doesn’t bake wedding cakes at all, the question of whether he discriminates against gays by not baking them a wedding cake would never even arise. The point of the law is not to assure the availability of wedding cakes, but rather to prohibit discrimination.
With respect to separation of church and state, when confronted by questions about the government requiring or prohibiting something that conflicts with someone’s faith, the courts have generally ruled that under the Constitution the government cannot enact laws specifically aimed at a particular religion (which would be regarded a constraint on religious liberty contrary to the First Amendment), but can enact laws generally applicable to everyone or at least broad classes of people (e.g., laws concerning pollution, contracts, torts, crimes, discrimination, employment, etc.) and can require everyone, including those who may object on religious grounds, to abide by them. (E.g., http://supreme.justia.com/cases/federal/us/494/872/case.html) Were it otherwise and each of us could opt out of this or that law with the excuse that our religion requires or allows it, the government and the rule of law could hardly operate.
“The point of the law is not to assure the availability of wedding cakes, but rather to prohibit discrimination.”
My friend, no one is disputing that point. In criminal law, actus reus is the objective definition of a potential criminal act. The other element mens reus, is the intent. When deciding the guilt or innocence of an accused, both actus reus and mens reus are taken into account. If there is no actus reus, there is no crime. Depending on mens reus, there may be no crime, or its judged severity can be different.
For example, it might be established that an accused struck and killed another person with a car. That does not automatically lead to a charge of murder. The death could be ruled accidental, or, in the case of a gunman threatening the accused, the killing might have been in self-defense.
What we have here is an actus reus that in almost any circumstances would not be considered criminal. If someone arrives at the bakery after closing, for example, it would be perfectly reasonable to expect that the baker would not bake that person a cake. Or, if a customer walked in with no pants on, the baker could yell at him to get out. Or, the Christian baker might tell the guy with “I hate God” tattooed across his face that he will not serve him.
So, essentially, we have this very narrow mens reus where a baker may refuse to bake a cake for anyone for virtually any reason except when that reason has mention of the customer’s gender, race, or sexual orientation. And, if the baker simply says, “Sorry, I’ve got a really heavy workload, can’t do it.” there is no possible way for him to be prosecuted in court. And this is precisely what will happen once people wise up and stop telling the truth.
The thing is, this isn’t about making things more fair for LGBT people, but punishing those who would voice any kind of sentiment that others find repugnant. The people who will benefit most are the fundamentalist Christians who cite these incidents as evidence of the war that is being waged against them. Thankfully, many in the LGBT community recognize that this is not the right tact to take if the goal is to spread tolerance rather than inflame hatred.
A baker naturally may have many reasons for not baking a cake that do not run afoul of the law, e.g., he has retired or his shop has closed for the day. That there may be any number of such legitimate reasons does not negate that there may also be, under the law, illegitimate reasons, one of which is to discriminate against someone based on gender, race, or sexual orientation.
That some may resort to ploys of the sort you posit, i.e., discriminate by dissemble to hide that fact, also does not detract from the aim of the law. Indeed, that sort of thing has long been encountered with respect to laws against racial discrimination in housing and the like.
Why you suppose this is not about making things fair for LGBT people and only about punishing those would find them repugnant is not clear. Would you say the same about laws against racial discrimination–that they are not about fairness for racial minorities, but rather about punishing bigots?
“Why you suppose this is not about making things fair for LGBT people and only about punishing those would find them repugnant is not clear.”
Well, I’m one of those crazy nutjob libertarians who is very cautious about infringing human rights, even for those who I do not agree with or find distasteful. Back during the late 19th century, there was a group of people that many voters found distasteful, so much so that they passed laws to try to segregate their children in school, prevent them from competing for jobs, and later, imprison them for cultivating and smoking a harmless plant. These were malicious laws that directly infringed on their freedoms, but were justified by the rhetoric of building a better society.
The same tools of the state which were used to disenfranchise and impoverish generations of blacks have now been turned to the task of ensuring fairness. I understand the sentiment. I do understand how someone who walks into a store expecting to be treated the same as everyone else feels wronged when they are refused for something that is not of their own doing. However, it is my sincere belief that in trying to correct this lack of fairness, a much worse travesty is committed. The baker, who in all other cases is completely at his will to refuse service, is suddenly compelled to act. He is enslaved. Yes, he’s an unwitting bigot. Yes, that’s frustrating and demeaning. But no, I do not agree that government can legitimately take from him the ability to choose not to act, not when the only defining feature of the crime is the thoughts and beliefs in his head.
Your argument proves too much. Declaring yourself a libertarian might, I suppose, serve to explain an objection to any law prohibiting discrimination of any sort, but it hardly serves to explain differentiating between discrimination laws depending on the type of discrimination. It does not explain how you could support a prohibition against discrimination based on race, but object to a prohibition against discrimination based on sexual orientation. Both prohibitions arise from the same source of government power and both operate the same way. Both render acts that would be entirely lawful in some circumstances (e.g., declining to render services after closing shop) unlawful in other circumstances depending on the mental state of the one engaging in the acts, i.e., the thoughts and beliefs in his head.
If you accept laws prohibiting some types of discrimination and reject laws prohibiting other types of discrimination, some reason for making that distinction is at work, but libertarianism alone doesn’t get the job done.
There is no logical contradiction. No, I do not deem laws legitimate that prohibit “discrimination” as such when we are talking about voluntary human interactions. You ask me if I support laws that oppose discrimination. Yes, I do, when that discrimination is imposed coercively. I do not regard sexual orientation as being in some other realm from race. I regard my fellow human beings with respect and courtesy and do not wish to see them punished, even if their opinions differ wildly from my own.
What it comes down to is whether or not this is a legitimate use of state power. The state’s only tool is violence, and I oppose any use of that tool to try to shape societal opinion and punish the wicked purveyors of cake deprivation.
The concept that I’ve been circling is the idea of whether or not the baker owes it to anyone to bake them a cake. In mentioning the various ways that someone might be disappointed by the baker being unavailable or refusing service for reasons that are (at present) legal, I was trying to illustrate this concept. The baker does not owe anyone a cake. The baker advertises a product which another person may voluntarily wish to trade for, but the baker is under no obligation to provide that product. Anti-discrimination laws that target commerce create an obligation where none would otherwise exist.
Another problem is the arbitrary nature of the concept of “fairness”. What about someone who is underprivileged economically? Should the baker sell a wedding cake to someone who can’t afford to pay for it? What if the customer is the baker’s ex-wife? What if the customer is a middle-aged man who is marrying the baker’s sixteen-year-old daughter? If “fairness” to the customer is the overarching concern, shouldn’t the baker be prohibited from refusing to serve any of these people?
As I mentioned in my last post, the state’s only tool is violence. If you use it at all, it should be as a last resort to stop violence from occurring.
The concept that I’ve been circling is the idea of whether or not the baker owes it to anyone to bake them a cake. In mentioning the various ways that someone might be disappointed by the baker being unavailable or refusing service for reasons that are (at present) legal, I was trying to illustrate this concept. The baker does not owe anyone a cake. The baker advertises a product which another person may voluntarily wish to trade for, but the baker is under no obligation to provide that product. Anti-discrimination laws that target commerce create an obligation where none would otherwise exist.
Another problem is the arbitrary nature of the concept of “fairness”. What about someone who is underprivileged economically? Should the baker sell a wedding cake to someone who can’t afford to pay for it? What if the customer is the baker’s ex-wife? What if the customer is a middle-aged man who is marrying the baker’s sixteen-year-old daughter? If “fairness” to the customer is the overarching concern, shouldn’t the baker be prohibited from refusing to serve any of these people?
As I mentioned in my last post, the state’s only tool is violence. If you use it at all, it should be as a last resort to stop violence from occurring.
In your penultimate paragraph, you’re making my point. Yes, society, through its government, has decided to prohibit some types of discrimination, but not all. Your libertarian view would call into question any such prohibition. It entirely fails to explain, though, why or how you would accept certain prohibitions, e.g., based on race or gender, but reject others, e.g., based on sexual orientation. To draw that distinction, some further explanation or rationale is needed.
To make it plain, imagine two different customers, one black and one gay, in any or all of the hypothetical situations you pose. Imagine further that the baker refuses to bake either customer a cake for the very reason that customer is black or gay. Would you support a legal prohibition against both, either, or none of these two types of discrimination?
None. The baker is free to be an asshole, as he pleases. I thought I made that clear.
And by the way, I appreciate that you have not exhibited the knee-jerk reaction of most people, to condemn my motives at the first sign of disagreement. I refer to myself as a nutjob libertarian in jest, because as a group we tend to get dismissed rather quickly, usually strawmanning without really taking our arguments at face value.
There are many ways that gays and lesbians experience discrimination in ways that currently are, or have been sanctioned by government authorities, ways that I vehemently oppose. Marriage is just one of those. A libertarian sees marriage, ideally, as a private matter, an agreement freely made between willing individuals, with contractual obligations either implied in tradition, or explicit. However, we are far from t his ideal, with a state that claims governance over the institution of marriage, and grants privileges to those who marry. In the ideal system, gay marriage isn’t even an issue. People marry whomever they want to. In fact, there is no discrimination against alternate forms of marriage like line marriage, polygyny, polyandry, whatever. Given the actually existing institution of marriage, more freedom is always preferable to less, so libertarians should (and typically do) support gay marriage, even as we deny that the state has any business picking and choosing who gets to marry in the first place.
Other examples of discrimination include anti-sodomy laws, which seek to criminalize all forms of sex other than what is only possible between opposite sex couples. We also have bias and corruption in the legal system, which would fail to punish those who committed violence against gays and lesbians. The state has a lot to answer for in its history of violence and oppression.
The thing is that when, for example, these anti-sodomy laws went into effect, people believed that the state should have the power to regulate what type of sex people were having, and the power to forcibly intervene and imprison people for violating those laws. The libertarian sees this as a problem of state overreach, where the modern-day liberal sees this as a problem of puritan values. I don’t think that puritan values are a problem, per se, as long as people restrict themselves to acting those values out within their own personal sphere, and refrain from using them as an excuse to violate the rights of others to their life and their property.