Private Discrimination Is As American As Apple Pie

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Ben Domenech at The Federalist actually understands what the law is regarding homosexuals and private vendors:

Let’s get a few things straight. Jim Crow for gays was not prevented by Jan Brewer’s veto of their religious liberty bill last night. Indeed, most Arizona businesses – like most businesses across the country – are free under the law to discriminate according to sexual orientation or anything of the kind. The bipartisan group of law professors who helped draft legislation like this in other states – many of whom support gay marriage themselves – were the ignored parties in all the coverage of this story, as amateur legal minds screamed of legalizing all sorts of terrible things which are in reality already legal. Ilya Shapiro, one of Cato’s brightest thinkers, went even further in undermining the case against this law:

SB 1062 does nothing more than align state law with the federal Religious Freedom Restoration Act (which passed the House unanimously, the Senate 97-3, and was signed by President Clinton in 1993). That is, no government action can “substantially burden” religious exercise unless the government uses “the least restrictive means” to further a “compelling interest.” This doesn’t mean that people can “do whatever they want” – laws against murder would still trump religious human sacrifice – but it would prevent the government from forcing people to violate their religion if that can at all be avoided. Moreover, there’s no mention of sexual orientation (or any other class or category). The prototypical scenario that SB 1062 is meant to prevent is the case of the New Mexico wedding photographer who was fined for declining to work a same-sex commitment ceremony. This photographer doesn’t refuse to provide services to gay clients, but felt that she couldn’t participate in the celebration of a gay wedding. There’s also the Oregon bakery that closed rather than having to provide wedding cakes for same-sex ceremonies. Why should these people be forced to engage in activity that violates their religious beliefs? For that matter, gay photographers and bakers shouldn’t be forced to work religious celebrations, Jews shouldn’t be forced to work Nazi rallies, and environmentalists shouldn’t be forced to work job fairs in logging communities.

Some context is necessary here. In the wake of the curtailing of the Religious Freedom Restoration Act, states have pursued a host of mini-RFRAs which include protections for religious liberty. Attorneys and law professors who support gay marriage, such as Doug Laycock, have worked alongside attorneys from national faith groups to create legal language designed to follow the national RFRA’s model. This movement has recently fallen prey to the problems of any movement led by lawyers: it has seen a host of things that are benign in a legal context being misconstrued – or purposely lied about – to foment rage against things which are already legal, and ought to be in a society which values religious liberty. Kansas became the most recent example for pushback over the language proposed by these legal experts, though freelance efforts in other states have been even less successful (South Dakota didn’t even get out of committee).

The majority of the language in these bills, such as that related to maximum extent, is a cut and paste from the federal RFRA (of course, it’s a real question whether Chuck Schumer’s bill could pass today).  These lawyers have attempted to ensure that those with sincerely held religious beliefs retain their ability to live and work in the public square without being compelled by the force of government – likely due to the ruling of a court – to do something which runs against their beliefs. Kevin Williamson notes the danger of this judicial fiat: “If anything, it is much more likely in 2014 that a business exhibiting authentic malice toward homosexuals would be crushed under the socio-economic realities of the current climate. That is a good thing for two reasons: One is that genuine hostility toward gay Americans is today a distinctly minority inclination but one that still should be challenged. The second is that it is a far healthier thing for that challenge to take place on the battleground of civil society rather than in the courts and legislatures.” But then again: “We are a Puritanical nation, which doesn’t mean we hate sex (the Puritans loved sex). It means that we are profoundly anti-Catholic and prone to stamping out dissenters. We used to use social consensus and economic pressure where we didn’t use convictions to accomplish this. Now we use the Supreme Court.”

The reality is that discrimination on the basis of sex in public accommodation and in numerous other ways is for the most part totally legal at the state level. Yes, this crazy Jim Crow reality that has been fearmongered to death is already the law in most states. Most people think it’s illegal, but it isn’t – last night I heard a sports radio host describing America as a place where “no one has any right to deny anyone any service any time for any reason”, which is pretty much the opposite of freedom of association. But while it is legal, it rarely comes up – because it is so infrequently an issue! It turns out most Southern Baptists are perfectly happy to take gay couples’ money and bake them a cake. The pursuit of a positive Yelp review can be a powerful motivator.

But – and here’s the real focal point of this issue – they should be free to choose not to. And those who favor human liberty should be in favor of defending this status quo. Elizabeth Scalia writes: “I feel like I’m watching my gay friends get mauled and then watching my Catholic friends get mauled, both by people who have lost the ability to do anything but feel and seethe.” Elevating emotion (even understandable emotion) over reason is precisely what statists do and have done for centuries, and something libertarians (and too few conservatives) rightfully decry. The end point of overreaching government is a reality where believers are forced to bake a cake to celebrate an act they view as sinful, but under no circumstances can they serve unlimited brunch.

If you believe markets work, if you believe people work, then you should have faith that legitimate bigotry will be punished by the marketplace. So Hobby Lobby and Chick Fil A and all the cakemakers who only make heteronormative cake will see their business drop because they were anti-women or anti-gay or what have you. Giving the government the power to punish them – which really amounts to giving elite trial lawyers that power – is madness if you believe in people and markets. Decisions made by free people within markets will sort themselves out better than giving courts and government and bureaucrats the power to do the sorting. No one will shop at the Nazi store without being judged for shopping at the Nazi store, so we don’t need government to ban the Nazi store.

Go here to read the rest.  The Civil Rights Acts that banned discrimination on the basis of race by private vendors were unusual legislative acts based on an unusual situation:  state governments that mandated such discrimination by private businesses.  It took government action to break down such government mandated discrimination.  Absent such government mandated discrimination, I think most Americans, if they truly ponder it, would be all in favor of businesses discriminating in some cases.  For example, I assume few people are against restaurants discriminating against nudists by mandating clothes.   I imagine few Americans would feel comfortable telling a black owned barbecue restaurant that they must cater a Klan rally.  A Jewish run deli really should not be required to provide take out for the group calling for divesture from Israel.  I am not going to represent the owner of an abortion clinic under any circumstances.  In theory Americans might be against private discrimination in commerce, but when it comes down to actual cases, I suspect that almost all Americans are not non-discrimination absolutists.   When businesses discriminate they of course run the risk of losing customers, but freedom of the consumer goes along with freedom for the vendor.


Of course lawsuits against people who refuse to bake cakes for, or take photos at, gay weddings have nothing to do with discrimination,  there are endless other vendors to provide such services, and everything to do with compelling people to act as if gay marriage is perfectly normal and just.  That is why people who thought conceding gay marriage would end this argument were deluding themselves.  This is all about causing people who believe that pretending homosexual conduct is moral is completely wrong to shut up, and as long as there are those of us who have the temerity to speak out, the gay activists will continue their efforts to have the state shut us up.  The love that once dared not speak its name is now the love telling all opponents that they dare not speak at all.  In a free society this is intolerable and caters to an ever-growing totalitarian mindset on the left in this country where opponents are not fellow Americans to be reasoned with, but foes to be vanquished and humiliated by being forced to act against their consciences, and bankrupted through litigation if they refuse to meekly accept their assigned role in a leftist morality fable.


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  1. “The Civil Rights Acts that banned discrimination on the basis of race by private vendors were unusual legislative acts based on an unusual situation: state governments that mandated such discrimination by private businesses. It took government action to break down such government mandated discrimination.”
    The state does not own the sovereign person. The sovereign person constitutes the state.

  2. in the case of the cake/baker…I would make the cake and make it with a really bad recipe or not get the order right or something like that! Or say that proceeds of all sales go to trad marriage groups.

  3. The requirement that people exercising certain public callings are obliged to deal with all comers is very ancient and can be traced back to the rubric in the Praetorian edict Caupones Nautae Stabularii. It included innkeepers, livery stables and common carriers, wharfingers and the like. It is linked to their strict liability for loss and may have been intended to protect travelling strangers from exploitation.

    In Scotland, the acts of 1537 c 61 and 1587 c 91 oblige an advocate to plead causes whether he chooses or not, if in the one case a client and in the other the court pleases to insist on it, unless otherwise engaged (sometimes known as the “cab rank principle”) This is based on the Faculty’s exclusive right of audience – the price paid for a monopoly. I believe the charters of the Royal Colleges of Physicians and Surgeons contain similar provisions, but whether they would ground an action, I do not know.

    Certainly, freedom of contract is the rule and, until very modern times, exceptions were rare.

  4. Michael Paterson-Seymour: “Certainly, freedom of contract is the rule and, until very modern times, exceptions were rare.”
    In any contract violation, damages must be proven. Here the plaintiffs are charging violation of their civil rights as damage, insult to their God-given freedom of peaceable assembly, but is it peaceable assembly? indoctrinating the entire nation in sodomy is not peaceable assembly. Using the power of the state to demand license against the civil rights of all other people, and extort tribute in the form of assent and penalties.
    Having read my last statement it appears to me that it describes the state of affairs of Obamacare.

  5. True : “people who thought conceding gay marriage would end this argument were deluding themselves -” DMcClarey

  6. Is it no different than having apartment complexes and being forced to rent to gay couples? Is it no different than having an antique shop and having a large portion of your customers who are gay? Is it no different than having to rent to unmarried couples when it goes against everything you believe in? These laws are forced down our throats and whoa to the person who says one thing! The “norms” of society have changed? Such a mess we are in. There is a big difference it seems in the cases of businesses that offer the consumer to come in and shop, vs me gay person insisting that you bake me a cake or take my picture when you know how uncomfortable you are making me feel. If there are 50 photographer/cake bakers in your city and I am the ONLY one who does not want your business why would you even want me to do that? Unless you are trying to prove your nasty right. Kind of reminds me of Roe v Wade. No one even had an abortion but they proved their nasty point now didn’t they?

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