Some protesting the U.S. Supreme Court’s ruling in Masterpiece Cakeshop vs. Colorado Civil Rights Commission contend the 7-2 decision proved the justices hate gays.
That’s because the court ruled bakery owner Jack Phillips didn’t have a make a cake for the marriage of Charlie Craig and David Mullins.
That reaction illustrates how stupid public discourse has become.
A better and more precise view is that the justices were hesitant to give government more power to force business transactions between private parties.
Remember, too, that only one court seat (Neil Gorsuch replaced Antonin Scalia) has changed since 2015 when the Supreme Court decided that no state could deny a marriage license based on the genders of the applicants.
Hate gays? Not hardly.
It is a fundamental truth that when any government at any level enacts any law or regulation there is almost always corresponding loss of individual freedom. Something as commonplace as speed limits, as an example, take away the option to peg the needle — or at least result in punishment if caught doing so.
Throughout its history, the Supreme Court has shown itself avidly interested in a tenet of the Constitution — that individuals deserve to be protected against government power. A near-sacred space has been private commerce. Forcing people to do business with each other has been a no-no.
It was in the 1960s when Congress (not the courts) decided that racial discrimination, especially, was so widespread, so harmful to all of society and so odious that it would no longer be legal in the limited contexts of housing, employment or public accommodation.
Today, few in Mississippi remember the signs that were in almost all restaurants — “We Reserve the Right to Refuse Service to Anyone.”
The courts enforced laws against employment discrimination on a protected basis (race, color, religion, national origin, gender) because those reasons were pretextual. Said another way, if a Presbyterian could do the job as well as a Methodist, being Presbyterian, of itself, could not legally be used to disqualify an applicant. More recently and in other contexts protections have been extended based on marital status, gender preference and physical or other impairment.
There was a distinction in the Masterpiece case. The record showed Phillips had no problem transacting business with any customer. Charlie and David weren’t kicked out of the shop for being gay. Their request, however, was that Phillips use his personal talent to design and create a cake for their wedding. That, the court ruled, was too much.
Phillips said it this way: “The state should not be allowed to force creative professionals, like myself, to create artwork — in my case, cakes — to convey messages that go against their faith.”
Homophobia (if that’s what this is) aside, that’s how the world of commerce has worked. An imprint company owned by an Ole Miss diehard can refuse to create 1,000 “Hail State” cups for a Mississippi State fan. Had the court ruled for Charlie and David, an ordained minister, who can now refuse service to anyone, would be a lawbreaker for declining to administer vows to anyone who asked.
The whole “personal services” component is difficult. Justice Anthony Kennedy said as much. What about physicians, dentists, physical therapists? Most adhere to ethics codes disavowing discrimination, but a total mess is a sure bet if statutes supersede ethics codes.
It’s great that Colorado has an anti-discrimination law as opposed to Mississippi where the leadership created a law to endorse discrimination. These are not easy situations, however.
Think again, about housing and employment. If a person demonstrates the ability to pay the rent or do the job, nothing else really matters.
It’s a different question, though, if a person — any person — approaches an architect and commissions the design of a home. The architect has always been free to say yes or no and retains that freedom under the Masterpiece Cakeshop vs. Colorado Civil Rights Commission decision.
Governments have never been good at prosecuting purely private acts of discrimination. Governments and in this case the court have been consistent in understanding that their ability to legislate or control private transactions is (1) limited and (2) gives government authority that the Constitution indicates should be left to personal freedom.
There is no doubt that more and more people correctly see the sexual orientation of others as nothing to fear, but the role of government in affirming what’s generally known as gay rights is perilous.
The Masterpiece decision was correct. Decided differently, it would have opened the door to more government power, and less freedom for everyone.
Charlie Mitchell is a Mississippi journalist. Write to him at firstname.lastname@example.org.
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