Divorce—San Francisco Style

Written by: 
Aubrey Freedman

Last weekend the LPSF hosted a booth at the San Francisco Pride 2018 Fair.  We’ve become a regular exhibitor (not literally!) at the fair for many years, and liberty-leaning folks always love to see us there each year with our brochures, posters, buttons, World’s Smallest Political Quiz, Spinning Wheel of Crazy San Francisco Laws, and other tricks of the outreach trade.  This year folks may have noticed that we were there under our own Libertarian Party of San Francisco banner, rather than Outright Libertarians, which we had used for the last 14 years. The general public probably didn’t even notice the subtle difference because to the average person, once you’ve seen one Libertarian, you’ve seen them all.

Well, not exactly.  We’ve taken Outright to task for their conspicuous silence on the Jack Phillips case and the recent Supreme Court ruling.  As you probably know, Jack Phillips is the owner of Masterpiece Bakery in Lakewood, Colorado who was fined by the Colorado Civil Rights Commission in 2012 for refusing to bake a wedding cake for David Mullins and Charlie Craig who were planning their wedding.  He offered to make them other baked goods but not the cake because it violated his Christian faith, but they stormed out and left. Then they filed a complaint of discrimination with the Colorado Civil Rights Commission, which ruled in their favor and ordered Phillips to re-educate his staff (most of whom were his family members) and report to the government for two years all the cakes that he declined to create and the reasons why.  Phillips then took his case to the Colorado Court of Appeals and argued that the Colorado Civil Rights Commission had violated his constitutional right to freedom of speech and free exercise of religion. Eventually the Supreme Court of the US ruled on the case that the Colorado Civil Rights Commission had not applied the law correctly and ruled in Phillips’ favor. Supreme Court Justice Anthony Kennedy wrote the majority ruling that “the law must be applied in a manner that is neutral toward religion.”  The Colorado Commission’s consideration of Phillips’ case was “compromised” by comments by one of the seven commissioners who disparaged Phillips’ faith as “despicable” and comparable to comments made by those who sought to justify slavery on religious grounds. The Colorado Commission had previously allowed three different bakers to refuse to put anti-gay messages on cakes they were preparing. Since this was a very narrow ruling of the law, and though it’s a partial victory for folks concerned about the constitutional guarantee of freedom of religion, the issue has hardly been put to rest as other similar cases will undoubtedly end up in the courts again.  David Mullins proclaimed, “The case is about more than us, and it’s not about cakes. It’s about the right of gay people to receive equal service.”

“Equal service”—what does it mean and does it matter who is performing the service?  To Libertarians, it makes a world of difference who provides the service. If it’s a service provided by government—and we prefer as few of those as possible—then service must be provided to all “customers” without discrimination.  This includes all government roads, schools, housing, sidewalks, marriage licenses, and all the endless amount of services the government has taken over. Because the taxpayers all pay for the services in one way or another, it only makes sense and fulfills our sense of fairness that equal access must apply to all.  However, when it comes to the voluntary sector, this is where Libertarians part company with gay activists. Gay activists want to use the force of government to punish those opposed to the gay lifestyle. Whether those who don’t want to bake the cakes or provide the flower services—or issue the marriage licenses—no one can really know if their denial of services is truly religious or simply bigotry masked by religious freedom.  Should it matter if they are really bigots or not?

Yes and no.  We should find it abhorrent in this day and age that people are still judged as part of groupthink, rather than as individuals.  Libertarianism, if nothing else, is all about individual rights, not the rights of groups, though if individuals choose to associate in groups with other individuals voluntarily, that’s still an extension of individual rights.  However, in the real world, we all discriminate in our private lives with whom we associate, and there’s no compelling reason for that right of association to disappear when people voluntarily offer their goods and services for sale.

Most voluntary businesses these days are looking for more customers, not less, but if a business chooses to forego some profits—for whatever good or bad reasons it chooses—why is it necessary for the government to intervene?  Are there not dozens—if not hundreds in a major city—of bakers, florists, and photographers who would be more than willing to pick up the slack and offer their services? Why was it necessary for the gay couple to get their cake made from someone who didn’t want to bake it?  Isn’t that forced labor? Weren’t there other ways to affect change of a business that they felt was unfair and uncivil like negative word of mouth, a social media campaign, a boycott, even picketing in front of the store?

Now come the What If’s when it comes to private discrimination.  What if a gay couple is driving across Utah and wants to stop for food and lodging and no one wants to serve the couple because they’re gay?  (I was actually asked this question one year at our Pride booth.) I’m not so sure that the predominately Mormon state is as anti-gay as folks suppose; I personally know one gay Libertarian who was elected mayor of a small town in Utah.  More to the point, the couple knew they were heading into Mormon territory before they headed out, and they should have come prepared with a lunch and sleeping bags because no one should ever be forced to serve another. What if a racist business owner doesn’t want to serve a black customer in his restaurant?  Free markets and competition offer built-in incentives against discrimination. Unless all the restaurants in town have made a pact not to serve blacks, the racist’s loss is another business owner’s gain. What if an emergency vehicle comes to tend an accident victim and they discover the victim is the wrong color and refuse to treat him?  (I heard of this happening in South Africa years ago.) The answer is the medical professional has taken the Hippocratic Oath and is bound by that, so if he fails to live up to it, he should be expelled from his professional organization. Considering the huge commotion, expense, and public image nightmare over the recent Starbuck’s incident in Philadelphia, it is safe to say today that businesses that exert blatant bigotry or outrageous treatment of customers will pay a price.  However, individual business owners may choose to pay the price, so that should be their choice, and the heavy hand of government is unnecessary, as there will always be another business standing by to serve the customer—and earn a few extra bucks. If not, we have to ask what barriers has government put up that prevented other potential business owners from opening up their own shops to serve shunned customers?

Why has discrimination based on groupthink persisted over the years?  While things have definitely improved for some groups, still some bigotry exists.  One of the reasons could be government enforcement of anti-discrimination legislation.  Of course, it is human nature to be wary of different cultures, but markets and free-dealing and voluntary trading among people do a lot more to break down barriers than the heavy hand of government.  Remember the massive flight to the suburbs in the 70’s when the busing of children and desegregation started? Forty years later, have things changed that much in the schools? Not really. Schools in the suburbs tend to mostly white, and inner-city schools tend to be attended by non-white kids.  All that fighting, hate, and expense—and not much has changed. People do not like to be forced to change their attitudes, and most of all, they don’t like change forced in their faces. Governmental enforcement of anti-discrimination laws and preferences for favored groups (at the moment) only lead to backlash, which takes many years to dissipate.  Does anyone really think that Mullins and Craig running to the Colorado Civil Rights Commission to force him to respect them would make him more tolerant or approving of gays? Not likely now—or ever. He might have come around eventually, but dealing with government bureaucrats probably turned him away from forced tolerance forever.

Our final thought on the issue brings us back to our dispute with Outright.  We understand their unease with standing with what appears to be bigotry, but the principle at stake here is what goes on in the voluntary sector is none of the government’s business.  Individuals have—or should have—the right to serve or not serve in their own business for whatever reason they choose. Period. The same ruling that allowed Phillips to refuse to bake the cake should apply to a black baker refusing to bake a cake with Nazi dogma or the recent case in Seattle where a gay coffee shop owner ordered religious folks passing out literature that he found offensive out of his business.  A press release from Outright posing the other side of the coin could have shown their disdain for Phillips’ choice and still upheld Libertarians’ reverence for freedom of association and property rights. We still hope that they will come around and defend all individuals’ freedoms, not just the ones they prefer, and denounce all government coercion to legislate morality. Until then, we’ll do the job for them.

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