Bake the Cake…?! Property & Discrimination

“It’s a violation of religious freedom!”

“How dare you discriminate against gay people; that’s a violation of their civil rights!”

So which is it? Is forcing the cake baker to bake a cake for a gay wedding a violation of their religious rights? Or is refusing to serve a gay couple a violation of their civil rights? Which is the real issue?

Neither.

I’m speaking, of course, of the recent case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, a class action suit challenging business discrimination of services for gay events (or gay people more generally).

Let me break this down as concisely as I can in a series of points that will, I hope, give a clear picture of what the real issue is here, and the implications.

  1. First, is this a religious liberties issue? Yes and no. The first amendment of the Constitution contains five major protections: speech, religion, press, assembly and petition. Regarding religion, there are two clauses. The first states that government may not infringe on the “free exercise of religion,” and the second bars the government from “establishing” a religion. So it is my contention that the first amendment alone is not enough to argue this case. The real argument carries far more leverage. The 9th amendment alone does a better job.

 

  1. Is this a civil rights issue? Well, again, I will refrain from answering this directly; stick with me to the end as I make my case. Still, what would be the constitutional argument for this position? The argument for this would be premised on the 14th Amendment, an often misinterpreted amendment that protects peoples’ rights to the “equal protection of the laws.” This has been the Amendment used to argue for an end to discrimination based on race, gender, et cetera. The ACLU will certainly disagree, but I find it hard to make the connection between ensuring that all people are treated equally under the law (ie, the law cannot make different provisions for different classes of people) and give the government the power to force an individual to serve another individual against their wishes.

 

  1. So if the real issue isn’t either of these, what is the real issue? This is an issue of property rights. Who owns you and your labor? A Facebook critic and debater claimed that, while I own my own labor, the government can force me to use that labor equally for those they believe I should serve, effectively preventing me from discriminating. But if I can be forced to use my labor to serve someone I choose not to—for whatever reason—is that not, in so far as it goes—government owning my labor?

 

  1. Or you can look at it another way. To force a person to sell their labor to another is to say that the customer owns the labor of the other. Do you really own your own labor? To the extent that someone must use their time, resources and labor to serve you, is that not a violation of their property—themselves and their labor? In most places, we’d call that servitude.

 

  1. If someone says they refuse to serve balding red-heads, I may be upset and offended. But I am not entitled to their labor. On what moral basis can my demand that they serve me overrule their right to their own time, labor and resources? They may be foolish, petty and even morally stunted, but that does not give me title to force them to serve me or quit work altogether.

 

  1. But what about the argument: “You’re not forced to offer that labor; you can go out of business instead.” Yes, this is a frequently-used argument, though it’s put in more humanitarian terms: “We only ask [demand] that if you choose to sell your labor, you sell it equally to everyone [who we chose].” Okay, okay, so I put in my interpretation. Well, isn’t it re-assuring that our labor is only owned by the government (or the person being served) if we choose to … work? Catch the sarcasm.

 

  1. And the other argument. “It’s only servitude if it’s uncompensated. The cake-baker would still have been compensated, so it’s not actually servitude if we tell him how to use his labor and resources.” So we can choose to work or not. If we choose to work, we are forced to use our resources and labor to serve whoever the government says we should. But not to worry; we’ll get paid for it. Argument settled, they say. Really?

 

  1. “But discrimination is terrible! We must use the power of the state to end it!” Well, discrimination can be terrible. It can be morally reprehensible. It can be immature. It can be rather benign and inconsequential. And many times, it can be quite prudent. Not serve someone because of the pigment in their skin? Not serve someone because you’re supporting a lifestyle you believe is immoral? Not serve someone because you think they’re dangerous? Not serve someone because you don’t like them? The rationale for discrimination can run from idiotic to prudent, to a mere question of moral belief.

 

  1. We all discriminate all the time. Discrimination has become a deeply negative word due to its historical association with racial discrimination. But discrimination is simply freedom of association: there are people we would rather associate with and there are those we don’t. As I said, unfortunately, some people have foolish and morally decrepit rational for their choices of association. Sometimes its quite prudent (I won’t employ a child molester to babysit). Sometimes, it’s a question of moral belief, such as the case with the cake baker refusing to use their time, money and labor to make a cake for a gay wedding.

 

  1. Exchanging your goods and services with others (ie, starting a business) does not suddenly remove your property rights and give control over your labor to the government or society at large. This point addressed again a bit later.

 

  1. Consider my response to a Facebook debater who spouted many of these arguments I’ve discussed: “Are you okay with the logical extension of that argument? On that line of reasoning, anyone who exchanges goods or services with anyone else may no longer choose who to exchange those goods or services with… I presume here that you wouldn’t make exceptions [in order to remain consistent]. For example, you must also offer your services to pedophiles, Nazis, child porn marketers, et cetera, according to your argument, if the government saw fit. Either that or quit offering goods or services to anyone. … My point is that it doesn’t really matter what the reasoning is for discrimination. If you force someone to offer their (even compensated) labor to someone they disagree with, you have to equalize it everywhere and to EVERYONE. Unless, of course, using the power of the state to force people to offer their services to people they would rather not is really just subjective and based on whoever the state (and their constituents) want to.” I later reiterated my question: “So, you’re okay with the government forcing you to sell your labor to Nazis, pedophiles, people who sell child porn (so long as you’re not assisting them in something illegal, as you said), et cetera, fill-in-the-blank? You never and would never discriminate for any reason, and if you did, you’d be okay with the government using force to stop you?” He never answered.

 

  1. I was finally able to get my debater to cede something: After claiming multiple times that we do own our labor, but not offering for a justification on why we could be forced to use that labor against our wishes, he finally admitted that we really don’t own our labor 100% because we are in “contract” with society, and thereby have already agreed to give up full power over our labor because of this. In his words, “entering that contract [offering services for sale] does give the government some say in how you distribute and sell your labor. “ What I couldn’t get from him was how, in fact, we agree to any such “contract” simply by exchanging goods or services with others.

 

  1. Besides, do we really want to equip the government with the subjective power of determining who has a right to your time, labor and resources?

 

  1. If you haven’t, yet, there are two other key posts you have to read related to this: “Negative v. Positive Rights” and “The Tale of the Slave.”

 

  1. A couple of closing points. First, it is the trademark of progressivism to use the power of the state to force whatever change on society that its adherents see fit. This was true during the French Revolution, during which Robespierre and others thought anyone who did not actively (even beyond passively) support “the civil state” were guilty of treason and ought to face capital punishment. It is still seen today when Progressives destroy property in their attempt to silence speech that they do not like. Or try to create “safe spaces” on college campuses where “offensive” things cannot be said.

 

  1. On that last point and as my final point, that is why arguing a case like Masterpiece on religion alone is insufficient. If your religious views do not align with the vision of progressivism, there is no moral or religious argument that can satisfy. But when it is understood correctly that the real issue is the violation of property rights (which is the basis of religious liberty, anyway), then the argument in favor of refusing the gay couple the services of the cake-maker are property bolstered and understood.

Thumbnail photo credit goes to bustle.com. 

 

A Logical System of Justice?

My 10th grade class, which studies the historical narrative from circa 1600 to 1865 with a focus on Western Civilization (Europe and the Americas), has been spending some time studying the history of Anglo-British law as it developed through the Middle Ages and up through the Glorious Revolution, forming much of what was called English Common Law. I’ve already discussed some of this history briefly in an earlier post.

And in the course of our learning, I teach them that the U.S. judicial system of not based on a system of reparation. (And to note, it was not entirely so in Great Britain, either, as time went on. British royalty increasingly was quite prone to assume that they were the source of law, and the highest levels of the English judicial system were originally appointed by the king and carried his mandate. And when many of the colonists rebelled in 1765-1783, many were doing so on the basis that the English authorities were abandoning their traditional principles. And if you subscribe to my email, my upcoming email begins with an example of a jury trial condemning an English Catholic to death for refusing to admit that the king was the head of the church.)

Understandably, they are surprised. Nobody has presented law in this way before, and it seems so straight-forward to them.

I’ve been teaching them about the difference between negativism and positivism. Negativism (from which are derived negative rights, as I discuss in this post) is the idea that law comes before and outside of government. The opposite is positivism, which says law comes from government … if it is legislated to be wrong (or right), then it is wrong (or right). Negativism says it is wrong to steal, regardless of what the government says. Positivism says it is wrong to steal because the government says it is wrong.

The implication? In the development of English law through the Middle Ages onward, most law, accordingly, was developed through litigation (the legal process) instead of legislation (the law-making process) as negativism was the presumption. If someone was robbed, they could be provided compensation even without a law saying that stealing was wrong. And the guilty party was forced to pay reparations.

And this is where my students can see something obvious. If negativism is the presumption, then the person wronged has to be compensated. If I steal my neighbor’s truck, then I owe him…a truck. That’s called reparation. If I sell that truck and then don’t have money for a new one, then I make reparation by working until my wages have fully compensated my neighbor.

Seems like a logical approach to justice, right? Even the judicial system of the Mosaic Law given to the Hebrews as they left Egypt was built almost entirely on reparations. The person harmed was to be repaid by the guilty party.

That’s not what we have in the United States.

In the United States legal code, the government is essentially always the party that is wronged. It is the government that receives “reparation”.

If I am guilty of extortion, the U.S. system of justice requires that I pay the government a fine and spend time in prison, based on its own assessment of the crime, rather than the extent of the harm. And that money doesn’t go to my neighbor. It goes to the government. The law doesn’t require reparation to the party harmed (who will usually only get compensated if they had the right insurance), as assumed by negativism. Rather, it  treats the government like the harmed party, based on an assumption of positivism.

And yes, there are exceptions. People can file suit for reparation of damages. Unfortunately, this is inaccessible for most people given how high legal and lawyer fees are. But why are fees so high? Because the convoluted system of laws that requires an army of lawyers and their aids to navigate through.

The U.S. legal system as it is today is based on positivism. The laws are not based on negativism, based on natural rights outside of government. If the government wants to take one person’s property and give it to another because thinks the second person would make “better” use of it, then they can. The Supreme Court said so in Kelo v. City of New London (2005).

The main question I want to be drawn from this is: where do laws come from? Do you believe in negativism, which assumes a standard of right and wrong outside of government? Or do you believe in positivism, which says the government is the standard of right and wrong? And what are the implications for the system of justice?

Something to think about.