This week the U.S. Supreme Court ruled in favor of Masterpiece Cakeshop owner Jack Phillips, the Colorado cake baker who was sued and sanctioned by the state of Colorado for refusing to bake a wedding cake for a sodomite wedding. Conservative bloggers and right-leaning media hailed it as a victory for religious liberty. But was it? The court didn't rule on whether Phillips had the right to refuse service to sodomites on religious grounds or on whether cake-baking is a protected form of free expression. So no, it wasn't.
In overturning the decision by the Colorado Civil Rights Commission (CCRC) that Phillips had violated the state's anti-discrimination law that bars businesses from refusing service based on race, sex, marital status or sexual orientation and discriminated against the men who wanted him to bake them a cake for their "wedding," SCOTUS determined simply that the CCRC had shown hostility to Phillips' attempt to assert his religious beliefs as a reason to deny them service.
In its 7-2 ruling (with Justice Ruth Bader Ginsberg and Justice Sonya Sotomayor dissenting) to overturn the CCRC's judgement, SCOTUS determined that the CCRC didn't rule fairly or consistently when compared to its similar judgements over whether bakers could refuse to create cakes with anti-gay messages. According to the majority decision of the court, written by Justice Anthony Kennedy, "The commission's hostility was inconsistent with the First Amendment's guarantee that our laws be applied in a manner that is neutral toward religion."
The CCRC had not only been dismissive of Phillips' 1st Amendment claims, members of the commission "disparaged Phillips' faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to the defenses of slavery and the Holocaust... Another indication of hostility is the different treatment of Phillips' case and the cases of other bakers with objections to anti-gay messages who prevailed before the Commission. The Commission ruled against Phillips in part on the theory that any message on the requested wedding cake would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the cases involving requests for cakes depicting anti-gay marriage symbolism," Kennedy wrote.
In other words, the majority opinion didn't address Phillips' free speech or religious liberty arguments. It simply addressed the discriminatory way in which the CCRC handled his case. This leaves the cases of others being persecuted for their religious beliefs in limbo — people like Washington florist Barronelle Stutzman and New Mexico photographer Elaine Huguenin.
Justice Clarence Thomas — joined by Justice Neil Gorsuch — wrote a concurrent opinion discussing the free speech issue of the case. He opined that Phillips' free exercise of religion was harmed as was his freedom of speech. He argued that as the acceptance of gay "weddings" becoming more prevalent, the ability to speak out against it should get more protection, not less.
Progressives and the anti-liberty crowd have decided that if one opens a business he checks his own rights at the door. As such, the business owner is compelled by the state to serve anyone and everyone that the state has determined have special rights — but can exclude currently out of favor segments like Christians, Holocaust deniers, 9/11 truthers or those who would disparage homosexual practices — as the CCRC showed in its ruling.
To most Americans, whether one has rights depends upon whose ox is being gored. But liberty, freedom of choice and freedom of association are all concepts of natural law. The state cannot require one protected class be granted "rights" without taking rights from someone else.
Progressives would have you believe that allowing business owners to operate in a discriminatory fashion would lead to wholesale discrimination against certain classes. To prevent such wholesale discrimination, progressives created laws — not the least of which is the 14th Amendment — to force businesses to operate in a manner contrary to their owner's beliefs or conscience, a clear violation of the 1st Amendment's "free exercise" and "freedom of assembly" clauses and state religious liberty laws. Jim Crow is the cudgel progressives love pull out to beat about the head and shoulders of liberty lovers and supporters of laissez-faire capitalism. But Jim Crow laws were not societal or free market constructs. Instead, they were rooted in statism and efforts by racist progressives to restrict the free market from the period beginning in the early 1890s into the 1920s.
In his review of David W. Southern's The Progressive Era and Race: Reform and Reaction, 1900-1917, Reason's Damon Root wrote:
[T]he Progressive Era was also a time of vicious, state-sponsored racism. In fact, from the standpoint of African-American history, the Progressive Era qualifies as arguably the single worst period since Emancipation. The wholesale disfranchisement of Southern black voters occurred during these years, as did the rise and triumph of Jim Crow. Furthermore, as the Westminster College historian David W. Southern notes in his recent book, The Progressive Era and Race: Reform and Reaction, 1900-1917, the very worst of it — disfranchisement, segregation, race baiting, lynching — ‘went hand-in-hand with the most advanced forms of southern progressivism.' Racism was the norm, not the exception, among the very crusaders romanticized by today's activist left...
Take the Supreme Court's notorious decision in Plessy v. Ferguson (1896), a case that has rightly come to symbolize the South's Jim Crow regime. In Plessy, the Court considered a Louisiana statute forbidding railroads from selling first-class tickets to blacks, a clear violation of economic liberty. In its 7-1 ruling, the Court upheld segregation in public accommodations so long as "separate but equal" facilities were provided for each race, setting off an orgy of legislation throughout the old Confederacy. South Carolina, for example, segregated trains two years after Plessy. Streetcars followed in 1905, train depots and restaurants in 1906, textile plants in 1915-16, circuses in 1917, pool halls in 1924, and beaches in 1934.
No doubt many of those businesses would have excluded or mistreated black customers whatever the law. But in a market free from Jim Crow regulations, other businesses would have welcomed blacks, or at least black dollars, forcing racist enterprises to bear the full cost of excluding or mistreating all those potential paying customers. (This was one of the chief reasons the segregationists pushed for those laws in the first place.) The state, in the eloquent words of the historian C. Vann Woodward, granted "free rein and the majesty of the law to mass aggressions that might otherwise have been curbed, blunted, or deflected."Life in a free country is about being free to make choices, choices based on your own criteria rather than one mandated by the state. Don't like fried chicken? Stay out of KFC. Don't like pizza? Avoid Pizza Hut. Don't care for seafood? Red Lobster isn't the only restaurant in town. Denny's gave you lousy service? Stay away... and tell your friends. Don't like how Walmart compensates its workers? Buy your cheap Chinese junk from Target or Kmart (if you can find one) — or the local mom and pop store — and your groceries from Publix or Kroger.
Don't like it that Chick-fil-A's president supports traditional marriage? Buy your chicken sandwich from Burger King. They've gone all in on "gay pride." Don't like how Starbucks treats black customers or gun owners? Get your coffee from Joe Muggs. Don't like Muslims? Stay out of the Middle East, mosques, Louis Farrakhan rallies and U.S. prisons — and Deerbornistan, Michigan. Don't like Jews? Stay out of Israel, New York, Massachusetts, California, synagogues anywhere and jewelry stores.
Don't like kids? Avoid day cares, schools and playgrounds... and sexual intercourse. Or get a job at Planned Parenthood.
Don't like blacks? Move to Montana, Vermont or Idaho. There aren't many there.
Don't like whites? Move to Detroit; Jackson, Mississippi; Miami Gardens, Florida; Birmingham, Alabama; Baltimore; or Memphis, Tennessee. You will see some, but they'll be the minority.
That's discrimination. It's also called liberty, freedom of choice and, in the concept of natural law, freedom of association as guaranteed in the 1st Amendment.
What is not freedom is when the state compels you to serve, associate with or accommodate those you don't want to, regardless of the reason. That's called slavery and tyranny.
Yours for the truth,
Bob Livingston
Editor, The Bob Livingston Letter™
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