On December 5, the US Supreme court heard arguments in the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. This case gives the newly minted Trump majority an opening to rethink public accommodations law. Currently, 45 states have laws that prohibit discrimination by businesses offering public accommodations: loosely, those offering goods or services to the general public. (The federal government claims some scope for jurisdiction under the interstate commerce clause.) These laws have always been controversial. Most recently, evangelical Christians have been arguing that these laws are too broad. The court has a chance to narrow the scope of public accommodation laws: prohibiting discrimination only in more narrowly defined range of essential accommodations.
At issue is Masterpiece owner Jack Philips’ refusal to sell a cake to a gay couple for their wedding. Colorado’s public accommodations law does not allow a business to refuse service based on sexual orientation. Philips argues that he did not refuse to serve homosexual customers. He claims that a wedding cake is, in some form, speech, and that he cannot be compelled to speak contrary to his Christian beliefs.
The central question in this case—“Is a cake speech?”—is ethically and philosophically interesting. John Corvino excellently dissects this issue. Although central to this particular case, the cake or speech question is secondary to a larger question about the purpose of public accommodation laws. With Justice Gorsuch appointed precisely to please evangelical Christians, the Trump majority has the chance to reshape the scope and purpose of public accommodations laws.
Public accommodations laws were a response to Jim Crow. As such, they are a complicated and imperfect answer to the question: What kind of society do we want to live in? Two obvious answers conflict. We want to live is a society that distributes goods and services through the market, not the state. We also want to live in an open society where diverse people have liberty to pursue their own conceptions of the good.
The situation appears easier to solve in a state-run economy. Where I grew up, liquor stores were state-run. The package store was a cherished civil service, not a private business. An employee of a state-run liquor store, as an agent of the state, is not at liberty to refuse to sell alcohol to be consumed at a wedding he disapproves of. If we simply nationalized the economy, the democratic majority could decide to impose its will with regard to who must be served in any business. A bit of clear thought on this option provides the best argument against it. For many good reasons, and quite a few bad ones, we have chosen to distribute goods and services in a market. This necessarily creates conflict between buyers and sellers with different moral values.
In the 1960’s, Nobel laureates Gary Becker and Milton Friedman argued that accommodations laws restrict the freedom of business owners, and do so unnecessarily. In libertarian theory, racism will disappear in a free market. The added costs of purchasing only from your preferred race (conversely, the lost profits from selling only to your preferred race) would drive irrelevant considerations from the market. They entertained the idea that people might prefer to pay a premium for their racism. However, at the end of the day, they optimistically believed that the vast majority of people would prefer money to prejudice. A) They were wrong. In our market society, we willingly pay a premium for increased segregation. B) The despised and marginalized minority deserves the rights and privileges of participating in society. This participation is only possible if they have equal access to the market.
Becker and Friedman were half right. Public accommodations laws restrict the liberty of business owners. Our diverse society distributes goods in a market. There will necessarily be conflict between consumers’ and business owners’ conceptions of the good. In adjudicating this conflict, priority has been granted to the value of inclusivity in a diverse society. Since the Civil Rights act of 1964, we have decided in favor of the consumer.
The principle appealed to has been that service cannot be refused based on an immutable characteristic. Our immutable characteristics are beyond our control and are not a choice we make. They are not something we can change if there are consequences. The protected characteristics vary by jurisdiction. In Colorado, these characteristics include sexual orientation, but also religion (which is clearly not immutable). A business could refuse to serve a person based on behavior, attire, even political beliefs. A private business is allowed to refuse service to a Neo-nazi. This makes some sense. We should suffer consequences for our choices not the circumstances of our birth.
The consensus seems to hold for goods and services that are in some way important. Gas is a commodity that we all need in order to participate in American society. There would be little public sympathy for a gas station that refused to sell gas to a limousine on its way to a gay wedding. Even if there is another gas station across the street, other options do not allow discrimination. Gas, food, medicine; our access to these goods is necessary for our basic participation in society. It is easy to argue that a business that sells these products should have to sell to everyone. It is hard to make a similar case for frivolous or luxury items. My inability to purchase fancy cheese from someone who hates me does not limit my liberty to pursue my conception of the good.
The development of public accommodations laws is one of the historic consequences of Rosa Parks sitting on the bus. Contrary to myth, her action was the well-planned first step in a long strategy that changed American society. Gay wedding cakes are an equally well chosen issue to test the principle underlying public accommodations law. In any objective sense, a wedding cake is a frivolous luxury item. Anyone who attempts to argue otherwise will look silly. The public consensus could easily shift if the conflict is between a business owner’s sincerely held belief, and a consumer’s luxury.
If Trump’s new justice, Neil Gorsuch, sways the court, then it is hard to see this ending well for the Friedmans and Beckers of the world. Gorsuch is a proponent of Natural Law Theory and defender of evangelical Christians. He is unlikely to favor the complete elimination of public accommodations laws. They are consistent with Natural Law. More importantly, evangelical Christians feel increasingly put upon in our increasingly diverse society. In many states, these laws protect Christians. It is a frightening possibility that the court would strike down protection for LGBT individuals, leaving other groups protected. This is unlikely. The majority that favored gay marriage itself in Obergefell is still in place.
What they could do is restrict the scope of goods and services that must be provided without discrimination. This would carve out a protected sphere for religious exceptions in non-essential accommodations. Phrased that way, it even sounds reasonable. It is not. An attempt to regulate which goods and services are significant or important, and thus protected, invites legal chaos as each product and service is litigated, and opens the door to massive government interference in the market. It is in order to avoid this mess that we distribute goods and services in a market in the first place.