“Let us understand that it is far better to live in an imperfect world than it is to live in a despotic world ruled by people who lord it over us through force and intimidation.” – Ron Paul, Liberty Defined
This wedding cake case will likely be a defining moment as to whether we have become so cowed as a society by those that would force individual freedom to take a back seat to people’s feelings masqueraded as “rights,” that we turn our backs on and abandon true liberty to the fist of populist totalitarianism. Nothing raises this concern quite like Justice Kennedy’s words during the hearing emphasizing on ensuring “the dignity of same sex couples” and preventing an “affront to the gay community” over securing the rights of free individuals. The arguments that are being put before the court are perfect examples of how the American citizenry have allowed the language of liberty to become distorted and bastardized. The complainants, with the backing of the ACLU, have asserted that this case is “about the right of gay people to receive equal service.” They further stage the question at hand as being “whether the Constitution grants businesses open to the public the right to violate laws against discrimination in the commercial marketplace if the business happens to sell an artistic product,” using a fearmongering, emotional appeal that “the bakery seeks a constitutional right to hang a sign in its shop window proclaiming, ‘Wedding Cakes for Heterosexuals Only.'”
The ACLU is correct in assessing that “this isn’t about artistic expression,” however, not for the reasons they think. It is somewhat related to freedom of religion and speech, but that too is not the dominant issue at hand here. This case is ultimately about, as unorthodox as it may sound for most, slavery. Namely the unconstitutionality of involuntary servitude.
This case is fundamentally very simple. Two people are requesting a service and the individual who provides that service has chosen that they do not wish to engage in that business exchange. Whether the baker is Christian or the two people are gay is irrelevant to the fundamental question at hand. Make the baker Jewish and the two patrons Klansmen, or even more simply just three random people of any shape and form: their backgrounds remain not pertinent to this impasse. That question, simply put, is it constitutional to place an individual in a condition in which one lacks liberty to determine one’s course of action and to compel them to perform a service against their will? And the very clear answer embodied in the 13th Amendment is: No, it is not, because “[n]either slavery nor involuntary servitude, … shall exist within the United States, or any place subject to their jurisdiction.”
The problem can be traced to government’s attempts to legislate against discrimination in the private sphere. Think about the actual definition of what it truly means to discriminate, rather than the distorted one that opponents of liberty have forced upon us over the past 60 years: to make a difference in treatment or favor on a basis other than individual merit. Discrimination itself is neither positive or negative thing by default. It is purely the exercise of one’s judgment to determine a preferred choice. As a securer of individual rights and liberties, naturally, we cannot tolerate a government to discriminate unequally on the basis of some arbitrary measure since activities conducted by the government with a bias in favor of one on these grounds is innately a bias against another, creating unequal protection and treatment under the law which government is derived to administer equally. However, this is clearly not a government baker. This is a free citizen, and free individuals discriminate regularly in who they are friends with, what clothes they wear, what jobs they apply for, and who they marry. Yet we wish to criminalize the individual’s natural rights to exercise individual thought and preference in regards to those aspects of their private life we arbitrarily decree to be in violation of a small minority’s alleged positive rights. This is where the freedom of religion and speech become somewhat relevant, as they are claimed to be the basis for this individual’s position to refuse service. However, one can just as easily change the reasoning to refuse to engage in this business exchange based on the customer espousing hate speech; or using profanity; or no shirt, no shoes, no service. The reason for the individual’s decision to discriminate against providing equal service is extraneous to their natural right to elect not to engage in such services against their will, safeguarded by our 13th Amendment’s protection from involuntary servitude and compulsory action, and in unambiguous supremacy of any claim to positive rights by those demanding the service.
Laws that compel private individuals to provide services to another individual are, and ought to be struck down as, unconstitutional. This includes anti-discrimination laws imposed on the private sector. No man is entitled to the services of another, nor is a government within their authority to coerce such a transaction, regardless of any good intentions behind such legislation. And the government has even less authority to legislate the demands of the tyrannical masses to take precedence over the rights of individuals on the basis of morality; lest we wish to hurl open that door to significant further abuse.
There is nothing inherently unconstitutional with advocating for tolerance in society, or even members of government doing so in government chambers. However, history has shown that you cannot legislate acceptable points of view, including tolerance, into existence and expect it to change people’s opinions. If anything, we know that it regularly only further entrenches their opinions out of resentment. Even Justice Kennedy appears to understand this with his statement that “[t]olerance is essential in a free society. And tolerance is most meaningful when it’s mutual.” The court’s ruling will either uphold several of the essential protections of liberty enshrined in our constitution or sanction the usurpation of power by the state to negate the rights of the individual. Our rights exist to protect us from the tyranny of the majority and the forces of authoritarian government. The law of unintended consequences looms to take effect in this case, as any power to abuse and violate individual freedoms you grant to the government in the name of advancing “good” is the same power that can be used for suppressing the individual. Suppose you did choose to grant the state authority to legislate tolerance: why would you want to live in a state that has the authority to use force to ensure compliance with a sanctioned point of view? Imagine the most despicable person you can and their positions on the issues you hold most dear. Now imagine this individual is in control of this totalitarian system which compels purity of thought through violence and tell me you still believe that we are better served to entrust the state with this power to subvert individual liberty for the sake of the – darling of the collectivists – “common good.”