On December 28th, 2017, the Oregon Court of Appeals forced two Christian bakers to forego $135,000 to a lesbian couple for whom they declined to bake a wedding cake. The couple claimed to be “mentally raped” (I’m not joking) because a property owner didn’t want to serve them. As if this spit in the face to rape survivors everywhere isn’t enough, it is a spit in the face to property owners in Oregon as well. Of course the court of social justice warrior judges with no regard for property and freedom would make this decision with such haste. The Supreme Court will probably strike down their decision, but the intolerant Left wanted to make these small business owners hurt.
On December 4th, 2017, the United States Supreme Court heard arguments about whether or not a Christian baker from Colorado should be forced to bake a wedding cake for a homosexual marriage. This issue has been extremely controversial, especially in libertarian circles. But ultimately, there is no argument in favor of compelling a business owner to serve any individual against their will that is consistent with libertarian principles. This article will outline a series of arguments in favor of free association. There are many scopes to consider in answering whether or not one should be forced to Bake The Cake, and since the Supreme Court is now involved, the most important case is the Constitutional Case. This is where we shall begin.
The Constitutional Case
According to the Colorado Appellate courts, the constitutional issue at hand is based on whether or not a business owner has the right to refuse service to individuals on the grounds of religious liberty and whether or not a gay couple has the right to obtain a cake from a baker of their choice. This is a rather simplistic summary of the case, as there are three main issues at hand.
The 1st Amendment reads “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.” If the government restricts people from marrying, they are violating the Free Exercise clause. The right for gays to marry is obvious, and need not be restated. But for more information regarding this, one can access information on Obergefell v. Hodges here.
Free Exercise, or free expression, goes both ways though. Free expression allows people to do things that may be considered immoral in the eyes of society. Texas v. Johnson upheld the right of the people to burn the American Flag on the grounds of free expression. The government has no right to regulate one’s behavior simply because people consider that behavior distasteful, especially on the grounds of religion. The baker is refusing to serve this couple because he personally does not see gay marriage as legitimate on the grounds of his religious beliefs. It is with this in mind that there is a degree of protection for the baker, but this is not the only reason the SCOTUS should defend his rights.
Much of the oral argumentation put forth by the ACLU, in this case, is maintaining that baking a cake is not art and is, therefore, not protected under the free speech clause of the 1st Amendment. To counter this, one must consider the amount of work that is put into making a cake, especially the cakes at Masterpiece Cakeshop. These are not cakes that one can find at Kroger. They are all specially designed and made-to-order. Any such expression is a form of art.Once the State defines what art and expression are, it assumes the right to define what art and expression is not. If making a cake is not art or expression, when will writing or spoken word or messages on clothing also not count as expression? The ACLU/Colorado Civil RightsCommission is giving the federal government a window to censor any and all activity they find offensive if the SCOTUS buys this argumentation. Even if the SCOTUS does claim baking cakes is not expression, I would be hard-pressed to believe they will claim entrepreneurship is not. An entrepreneur is an individual who uses his or her own capital he has saved or acquired through investment to make his or her ideas a reality. Entrepreneurs can put everything they have at risk in order to produce something better for themselves and their clients. A business is ultimately the private property of the business owners. Which brings us to the next point of contention: to force a business owner to serve anyone against their will is an implicit violation of private property rights, and therefore due process.
The 5th Amendment reads “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
The 5th Amendment explicitly grants the right of the people to hold private property. Since a business is property, the owner can exclude whomever he or she pleases with no exceptions. I will expand on this later in the article, but it is extremely important to realize this argument applies in a constitutional sense as well as a libertarian sense.
Moving on, in order to compel someone to provide a service to another individual, the right to property must be violated. No crime has been committed in refusing to serve an individual whereas the business owner has the right to refuse service. So long as a business owner did not previously agree to serve an individual, a contract has not been violated either. Forcing a business owner to serve someone he or she does not want to serve explicitly violates due process and equal protection (which is guaranteed by the 14th Amendment).
With all of this in mind, it is clear that laws requiring business owners serve anyone who desires to be served violates the 13th Amendment, which reads “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. Congress shall have power to enforce this article by appropriate legislation.” To force someone to serve another individual against their will is clearly involuntary servitude. To allow for this is to claim the government owns the business and even business owners. It is quite clear that there is no constitutional justification for forcing a business owner to serve anyone, even if it’s due to the fact that the service is for a gay wedding.
A Word on Public Accommodation Law and the Commerce Clause
One possible objection one may bring forth is the argument pertaining to that of Public Accommodation Law and the Interstate Commerce Clause. The 1964 Civil Rights Act set forth a precedent of public accommodation, outlawing businesses from partaking in discrimination. One can cross-apply my arguments regarding the 1st, 5th, and 13th Amendment to see why these Public Accommodation regulations are unconstitutional as well. Of course Heart of Atlanta Motel v. US did argue that the 1964 Civil Rights Act is constitutional, their argument doesn’t hold up to the standards of the Constitution. The activist judges who made this decision ultimately decided that civil rights legislation is not held under the scrutiny of the 13th Amendment. In other words, the justices effectively repealed the 13th Amendment, the amendment that abolished slavery, in the name of equality.
The Interstate Commerce Clause does, in fact, allow the federal government to regulate a great degree of economic activity in the US, but many of the Supreme Court decisions that give the government such immense power are horrific misinterpretations of this clause. But that’s not the focus of this article. For the sake of argument, let us assume every prior Supreme Court decision regarding the Commerce Clause is correct. Even then, it does not justify forcing a businessman to sell to someone whom they do not wish to.
The reason for this is that a transaction has not occurred, and since there is no commerce there is nothing the federal government can regulate. If I refuse to sell to someone, there can’t be any economic activity whereas no contract has formed. To tell a businessman to bake the cake is to take the Commerce Clause even further. If one believes the government can do that, you believe that not only can they regulate interstate commerce, but also you believe they can force commerce in the first place.
This would open the gates to hell. It would mean that property owners do not have the right to exclude others from their property. It would mean that a Nazi could force a Jew to Bake the Cake for him. Since the 14th Amendment guarantees equal protection, a right for one is a right for all, and rightfully so. But the mistake the government makes is they define things that are not rights as rights. In addition, the federal government now uses the Bill of Rights as a restriction on the people when it was intended to be a restriction on the government. This is why the libertarian case against Bake The Cake is so much stronger than the constitutional case, but the constitutional case is still irrefutable, nonetheless.
The Libertarian Case
I am not a constitutionalist. I see the Constitution as an inherently flawed document that allows for a federal government that is far too centralized. But the Constitution is the law of the land. It is the document the federal government must follow. This is why I included the constitutionalist case in this article. Since the SCOTUS is meant to determine whether or not a law is constitutional, this is the standard they ought to follow. But on a more philosophical ground, Bake the Cake is still an egregious aggression against human dignity.
Liberty is built on the foundation of self-ownership, non-aggression, and private property rights. To violate any of the three is to violate the natural rights of a human being. As a property owner, a businessman has the right to refuse service to anyone for any reason. A business is his property, and no one else’s. It is the choice of the business as to whom they serve and whom they do not serve.
Take a more conventional example, does one have the right to free speech? Yes. Does one have the right to break into my house or other units of my property so long as the intent behind this is to direct profanities toward me? Obviously not. As a property owner, I have the right to exclude anyone I please from my private property, for I am the sole owner of said property. No matter why I exclude someone from my property, it is within my rights to do so.
No matter whose feelings get hurt, this is the libertarian answer to the question of Bake the Cake. I do not have a right to your services. Consent is a two-way road. To do business, you must have a willing customer and a willing seller. By adhering to private property rights, this solution becomes incredibly obvious and simple. The Supreme Court isn’t asking if America respects religious liberty. Rather, they are asking if America respects the basic right to private property. To deny the right of the baker to deny service is to deny everyone the right to private property.
The Moral Case
If I walked into a bakery and it turned out that the baker hates tall people (I’m 6 ‘ 2″) and demanded that I leave the premises as he refuses to serve the vertically inclined, I would absolutely leave and take my patronage (and therefore, my money) elsewhere. Why would I want to promote the business of people who hate me? There is no moral reason for me to want to do this. Simply put, if why would an African American want to patronize a Klansman? Why would a Jew want to patronize a Neo-Nazi? Why would a homosexual want to patronize a bigot? They wouldn’t if they had any sense of decency.
People that are attempting to force association aren’t fighting for freedom, they’re fighting for tyranny. They hate the people who own property. They hate the individual right to be left alone on their property. They hate Christians. They hate the fact that they have rights. These leftists are so full of hate, that they are blinded by it. They fail to take this idea of forced association to its logical end: they too will be forced to serve straight, white, cis-gendered, Christian, tall, able-bodied, misogynist, right-wing Western men. They will have to associate with everything they hate as well. But of course, they don’t care about that, as long as private property is eliminated.
In other words, to side with people attempting to force bakers to make them a cake is to side with people who are actively fighting against private property, to side with people who are actively fighting against liberty, to side with people who are actively fighting against basic human decency. If you believe a baker should be forced to bake a cake for those he or she does not wish to serve, you do not believe in property. You reject the very foundation for freedom. By rejecting private property, you are a communist. There is no defense for forced association. There is no defense for forcing a baker to Bake the Cake.