Multiple thoughts flooded my mind as I read the transcript of Tuesday’s oral arguments before the U.S. Supreme Court over whether a baker, Jack Phillips, owner of Masterpiece Cakeshop, by refusing to make a custom wedding cake for a same-sex commitment ceremony, had violated a Colorado law that makes sexual orientation a protected class. But foremost was whether this experiment in liberty has come to an end.
As noted, the issue was a state law that applied to the conduct of private actors, not a state law applicable to government actors, state or local officials. And the questions by the justices made it clear that their chief concern was where to draw the line when civil government sticks its nose into interactions between two private citizens when the context is commerce.
First, the justices tried to sort through what constitutes “speech” under the First Amendment when it comes to food and art and what other kinds of food or forms of creative expression constitute “speech” that would be either subject to or free from the commercial transaction being coerced by the state statute.
Second, they were troubled with whether a religious “exemption” for not making a wedding cake could be used by those who assert religious grounds for not engaging in commerce with those of a particular race or ethnicity. And how that type of exemption could spread to other classes of people protected by the state law, like ethnic minorities.
I admit, those are some great questions and drawing lines in these situations is very hard. For example, “conservatives” would not want to concede that their asked-for religious “exemption” might allow someone to refuse to make a cake for an interracial marriage celebration, but “liberals” would not want their asked-for prohibition of a religious exception to force Muslims to make a Zionist cake celebrating the creation of the state of Israel. We like tolerance best when it runs only the direction we like.
For the next several months, commentators will speculate on how the Court might draw various lines in an effort to unloose the Gordian knot that was revealed by the justices’ questions. But one thing all sides are probably unwilling to consider is the fact that we created the knot.
We began tying the knot several decades ago when we began to use the force of civil law to make people engage in commerce with one another, and now we’ve added to our thinking the lie that if the law doesn’t force someone to engage in commerce with us, then we have lost our dignity.
But we won’t reconsider what we’re doing, and the reason ties into what the attorney representing the same-sex couple said about the implications of a religious exemption:
Once you open this up, once you say generally applicable regulations of conduct have exceptions when someone raises a religious objection, or in this case have objections where someone raises a speech objection, you’re in a world in which every man is a law unto himself.
Given that the Court again spoke of dignity wounds being inflicted by what the law does or does not force people to do, the lawyer was essentially saying that if civil government doesn’t intervene to force interactions between private parties, if it restricts itself to simply ensuring that its own actions do not violate due process or equal protection, then somebody might use his or her liberty in a way that undermines someone’s sense of dignity.
In other words, liberty in commercial interactions is too scary to be allowed in society anymore. Liberals are afraid of not getting what they want because of what “homophobes” out there might do and the conservatives are afraid of what they’ll be called because of what racists out there might do.
How ironic and what a strange reversal of roles. We seem to have come to a place in which liberals are afraid of liberty and conservatives are afraid to support it.
I’ll be the first to admit that returning to freedom of commerce among private actors could be messy. No doubt, people will allow things other than mere potential for profit to influence who they do business with, and their failure to do business with us can hurt our feelings.
However, Tuesday’s oral argument made it clear that there’s also nothing tidy about the mess civil government has created by its statutes compelling people to engage in commerce with each other, and the feelings of whomever the justices rule against will still be hurt.
But, apparently, that is to be preferred to liberty and, if so, then liberty may have just run its course in America. It seems like neither side is much willing to speak up for it anymore.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.
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