George Will over at National Review is known to be one of the most compelling minds of the conservative right and has been for many years. One is loathe to disagree with someone of Will’s pedigree.
…and I am about to do so here.
To wit, Will writes that effectively, Jack Philips — the Colorado baker in question — does not have constitutionally protected speech when he is in a place of business:
Phillips was neither asked nor required to attend, let alone participate in, the wedding. Same-sex marriage was not yet legal in Colorado, so Craig and Mullins were to be married in Massachusetts. The cake was for a subsequent reception in Denver. But even if the cake were to have been consumed at a wedding, Phillips’ creation of the cake before the ceremony would not have constituted participation in any meaningful sense.
Very specifically, Will cites the 1964 Civil Rights Act, which stipulates that a place of business would be required to serve everyone equally regardless of racial or religious background:
Six decades ago, the civil rights movement gained momentum through heroic acts of civil disobedience by African-Americans whose sit-ins at lunch counters, and other challenges to segregation in commerce, produced the “public accommodations” section of the 1964 Civil Rights Act. It established the principle that those who open their doors for business must serve all who enter. That principle would become quite porous were it suspended whenever someone claimed his or her conduct was speech expressing an idea, and therefore created a constitutional exemption from a valid and neutral law of general applicability.
What Will does not mention is that the 1964 Civil Rights act applies the principle for race, ethnicity, and sex among other things — but not for sexual orientation.
A minor quibble, perhaps. One would be correct to argue that if racial background offended one’s religious sensibilities (for instance), that such a strongly and sincerely held religious belief would probably not hold up to scrutiny.
The argument here hinges on what Alliance Defending Freedom (who has picked up the case defending Phillips) calls “artistic expression” — meaning that Phillips is doing a bit more than working on an engine, making a sandwich, or filing paperwork. Nor is Phillips making a sheet cake that says “Congration You Done It!” on it (click here to get the joke).
If you want to see precisely the sort of effort that goes into Phillip’s work, see here:
Where Will does get it right is in his condemnation of the excessive and brutal restorative claims the Colorado courts have imposed on Phillips, including the re-education of his staff, reporting to the government for two years, and detailing which cakes he feels morally compelled to decline making.
The line between what is artistic and what is arbitrary is… well, an arbitrary one. Yet Denver has plenty of bakers, as Will duly notes. If someone refuses to make a cake, take photos, or so forth? A willing buyer can go elsewhere.
Yet there is a principle at play here that states effectively that individuals, when they enter the marketplace, surrender their First Amendment rights as a matter of participating in society. This idea of “public sector services” as promoted by individuals such as EEOC Commissioner Chai Feldblum, argues that the integrity of enshrined rights is ameliorated the moment you throw the doors open for service. Ergo, declining to serve anyone regardless of one’s personal beliefs (no matter how strongly or religiously held) is a violation of the rights of the customer in a public forum.
The counter to this is quite simple. Individuals hold rights regardless as to whether or not they exercise them solely, unite with another person to exercise that right, or band together in non-profits, labor unions or corporations. At no point in time can an individual surrender these rights without due process, and as such, for the government to be able to command the positive response of conscience is a legal and moral impossibility.
In matters of conscience, coercion is as brutal a weapon as “shock and awe” is to foreign policy. In this instance, neither a hammer nor a scalpel is required — merely the free market. Will is correct to condemn the latter solution of coercion, but entirely misses the boat when it comes to positive acts of the individual being forced to violate one’s own conscience.