Do You Have the Right to Discriminate?


In June, the Supreme Court announced that they will be hearing Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, otherwise known as the case of the “gay wedding cake.” Just saying those words, or “christian baker,” sends both the left and right into a crazed hysteria. Truly, this has become one of the more heated debates of the last few years, and rightfully so, as it has some serious implications and consequences that will affect this country long after any of us are gone, and is way more in-depth than either side understands.

These are difficult and uncomfortable conversations, but they need to be had. How much does religious liberty play a role in this case? Do business owners have the right to deny service to any one for any reason? What is the difference between what discrimination the government should allow and which society should permit? Does the customer have a right not to be discriminated against, does the owner have the right to discriminate, and, if both are true, which is more important to maintaining liberty?

Let’s quickly identify a careful use of language by both sides. Those on one side will ask “should they be forced to provide service?” And those on the other will use “should they be allowed to deny service?” This distinction is important, though they mean essentially the same thing. If the business owner is “not allowed to deny service” they will be “forced to provide service.”

If you find yourself using the phrase “forced to serve,” you’re probably in the “not a fan of big government” camp. Those who use the phrase “allowed to deny service,” will almost always steer that conversation into three major questions to justify their logic.

So, let’s talk about the first question. This is the surface question of this case: does a christian have the right to deny servicing a gay wedding on the grounds of their faith’s position on gay marriage? This is how the case generally happens in the real world: A florist works for a gay couple for years. She provides flowers for their parties, events, etc. When they ask her to provide flowers for her wedding, she says no because she believes in traditional marriage, and this is where she draws the line. The gay couple then uses the ACLU’s power to have the state fine the woman unless she services the wedding, effectively shutting down her business if she refuses. Should the state have the power to shut this woman down unless she violates her religious beliefs?

The next question will go something like: “okay, so even if I allow someone to have religious freedom and not serve the gay wedding, should they be allowed to deny service to gay people?” This is where we can get into the meat of the argument. It’s not really about religious freedom to all on the left and a majority on the right. It’s about whether the state has the right to tell private business owners how to conduct their business or not. It is the boiling point of an ideology that has brought the minimum wage, the “acceptable reasons” to terminate someone’s employment, and a list of “alphabet agency” regulations that goes on nearly forever. This is one of the final areas in which the statists seek to control all aspects of the economy: “believe what we want you to believe, and act in the way we want you to act, or we will put you out of business.”

I’m sure you’ve seen the signs in businesses all over the country “we reserve the right to deny service to anyone.” This is a constitutionally enforceable sign, and it is always discriminatory in nature. Discrimination has been adapted to modern definition to mean only “the unjust or prejudicial treatment of different categories of people or things.” This is a transformation of the word based on a society’s general use of it. The original definition, and it is still in the dictionary, reads as “recognition and understanding of the difference between one thing and another.” Discrimination in the original sense is used almost every day, by everyone, and it often keeps you safe. A bar has a right not to serve a drunk person, that’s discrimination. A restaurant has a right to not allow children in certain areas, that’s discrimination. A contractor has a right to refuse a job that is too difficult, that’s discrimination. A grocery store has the right to not sell its products to someone who can’t pay the set amount. Also discrimination.

This right to discriminate doesn’t just apply to individuals who run businesses. I’ll bet you reading this have discriminated within the last 24 hours. You discriminate when you pick one restaurant to go to over another. Are you married? Have a significant other? You discriminated against everyone with whom you didn’t choose to spend your life. If you’ve chosen to pay more for rent so that your family can live in a nicer home, or safer neighborhood, you’ve discriminated. Any time you select one thing over another, congratulations, you’re discriminating!

Now I know what you’re screaming at your screen. “But this is different than all that! What about these people’s rights?!” I hate to break this to you folks, but you have no right to another person’s labor. An inalienable right cannot be dependent upon the labor of someone else. You do, however, have a right not to be forced into labor. If you have a right to my labor, then I am forced to give it to you without my consent. One must take precedence over the other. I’m no expert on history, but I seem to vaguely remember a war being fought between the states about this.

The rights of the business person in these scenarios are objectively real and constitutionally based, the rights of the gay couples are subjective, and just do not exist in any legal sense. With that being said, should the government be allowed to legislate against intolerant attitudes? Here is what is at stake for the baker: go against your religion, values, and belief system, or be shut down. What is at stake for the gay couple: having to walk to the baker across the street that will serve them. (slight anecdote about the greatness of capitalism: if you can’t afford or won’t be served by one business, there is another down the street that would gladly take your money.)

I support marriage equality because it is a matter of personal liberty, to which anyone’s personal feelings and beliefs are irrelevant. I support the business’s right to refuse service for any reason because it is a matter of personal liberty, of which anyone’s personal feelings and beliefs are irrelevant. What is unique and defining about the United States is that you get to do whatever you want as long as it doesn’t infringe upon other people’s rights. Individuals don’t stop having those rights because they open a business. A government that forces me to do something I believe to be wrong, will eventually force you to do something you believe to be wrong. When you release a rabid dog to attack your enemies, don’t be surprised when the dog turns on you.

That hypothetical leads us to the third question. This is the most difficult and uncomfortable part of the conversation, but the logic flows here almost every time.

“Okay, so does that mean businesses should be allowed to deny service to blacks?”

This is where you get to see if your logic holds up. For reasons that should be obvious, this area of the conversation lends even the strongest advocate for limited government to second guess themselves, or at the very least realize the gravity of the conversation. Before we get into the thick of the logic, lets quickly point out a key difference. There is a pretty substantial difference between legislated discrimination, which is what I’d bet you’re thinking of right now, and individuals being racist in their business practices. No matter what the court rules in this case, if you think someone believes horrible things, stay away from them, or debate them to expose them. If a business is racist or bigoted, don’t go to them and encourage everyone you know not to either. Picket outside their business. Use your rights to combat theirs. It is your job to decide what is acceptable in your community, not the government’s.

There can only be two logical conclusions to be consistent, and while we’ve been talking a lot about the left not thinking the argument through to the end, it’s time for the right to realize this reality. If there should be a law that prohibits racial discrimination in business, then the baker must bake the cake. If it is wrong for the Christian baker to be compelled to bake the cake, then it is wrong for the business to be compelled to provide service to minorities they don’t like. You cannot have it both ways.

I know this conversation is uncomfortable. I know this conversation is not fun to have. I know you don’t want to answer some of these questions. No matter what the court decides this fall, this is a vitally important conversation. Talk about it with your friends, bring it up at the dinner table, engage with others on social media about it. Don’t just spout your points, or attack the other side as “mean” or “unfeeling,” but listen to what someone else has to say. This decision will ultimately affect everyone who lives in this country.

The Supreme Court’s pending gay wedding cake case has immediate and important ramifications for individual liberty. I don’t pretend to have all the answers, especially in a situation that has so many layers, and stirs up so many old and legitimate emotions. There is an old legal adage that states “hard cases make bad law.” Whenever I am uncertain about which side of a policy debate to be on, or my emotions are getting the best of me, I side with the ruling that limits the government’s power and guarantees more freedom to the individual, even if the individual chooses to use their freedom to be a bigoted schmuck.

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Luke Garrison

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  1. Excellent article which brings up all the points typically heard in this debate. I also appreciate the point you brought up regarding “whose rights are more infringed” in this particular case. I’ve often said that you can’t legislate opinion.

  2. I have never heard of a business owner that was compelled to do business with someone who they did not want as a client. Nor do I understand why these fools did not simply seek a different cake shop. That is what I do when I do not feel welcome at a business.

  3. Thank you for a well written article on an important point. I nearly completely agree. My problem is at the boundary. If someone has a shop or home on the edge of a desert, and a starving, thirsty family crawls to the door. Does the shop owner have the right to refuse to serve them food or water, or even access to a telephone? Knowing that not serving them will mean death. To me, this crosses some sort of line, and the logic breaks down.

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