Moral Bullies and the Laws That Enable Them

Moral Bullies and the Laws That Enable Them

Clarice Feldman

A bakery in Georgia was legally compelled to bake a cake for a KKK birthday party, which it had refused to do because it violated the owner's religious beliefs. This week a TV station in Indiana drummed up a hate fest against a pizza restaurant in Indiana which serves everyone equally but for religious reasons said if asked -- no one but an ambitious reporter had -- to cater a gay wedding, they'd probably refuse on religious grounds.

If you like that both gays and straights, unhappy with the threats of arson and mayhem heaped upon the pizza restaurant based on a thought "crime" over a theoretical ,raised over $842,000 in two days time to get them back in operation, you probably don't like the notion of the state deciding what religious precepts you may follow in conducting your business. I think it's time to consider whether, in an effort to undo state mandated discrimination against blacks, we have gone too far afield and should scale back the push to regulate discrimination against a variety of protected groups in the private sphere.

How Did We Get Here?

Our public accommodation laws have been too broadly expanded and need to be scaled back, argues Scott Shackford at the libertarian Reason in an article I find compelling: The outpouring of support for Memories Pizza certainly reflects what Schackford notes:

Maybe instead of arguing who should or shouldn't be exempt from certain public accommodation laws, perhaps we should be looking more closely at what's included in public accommodation laws. That's really where the wiggle room is. Do gay couples have a right to make a photographer shoot their wedding? Maybe we should ask if anybody has a right to make a photographer shoot a wedding? Even though a majority of Americans now support gay marriage recognition, a Rasmussen Poll from last summer found that 85 percent of Americans believe that wedding photographers have the right to decline to shoot a gay wedding.

What we should take from that is that perhaps our public accommodation laws are too broad. There is a place in the American consciousness that allows for respect for property rights and freedom of association even if it leads to behavior many agree is bigoted. Title II of the Civil Rights Act of 1964 (which doesn't include sexual orientation) classifies hotels, restaurants (or any place food is served), gas stations, and entertainment venues as places of public accommodation. That's actually it. Ideas of what is classified as a public accommodation have been expanded further by additional federal legislation (like the Americans with Disabilities Act) and state laws. Arizona'spublic accommodation laws include banks, medical offices, and health clubs, for example. The state does not include sexual orientation as a protected class in its public accommodation laws, though some cities within the state do. Oregon's definition of public accommodation is much vaguer than the federal government's, encompassing nearly all businesses that serve the public and including sexual orientation among the forbidden categories of discrimination. Oregon is where a bakery ran afoul of these laws by refusing to bake a wedding cake for a gay couple and ended up shutting its doors.

If we were to say that goods and services like wedding cakes or wedding photography are not public accommodations then the reasons for refusal wouldn't matter and there would be no reason to have to develop special carve-outs for who could or could not discriminate. Nobody would have a right to demand a baker make them a wedding cake for any reason. It wouldn't matter if the customers were a gay couple, interracial couple, white supremacists, or the baker's ex-wife who dumped him for some loser.

Even the lefty Atlantic seems to be offended by the attack on small businesses like Memories Pizza. Conor Friedersdorf argues::

The owners of Memories Pizza are, I think, mistaken in what their Christian faith demands of them. And I believe their position on gay marriage to be wrongheaded. But I also believe that the position I'll gladly serve any gay customers but I feel my faith compels me to refrain from catering a gay wedding is less hateful or intolerant than let's go burn that family's business to the ground.

And I believe that the subset of the gay-rights movement intent on destroying their business and livelihood has done more harm than good here -- that they've shifted their focus from championing historic advances for justice to perpetrating small injustices against marginal folks on the other side of the culture war. "The pizzeria discriminated against nobody," Welch wrote, "merely said that it would choose not to serve a gay wedding if asked. Which it never, ever would be, because who asks a small-town pizzeria to cater a heterosexual wedding, let alone a gay one?" They were punished for "expressing a disfavored opinion to a reporter."

Much of the week's punditry concentrated on Indiana's Religious Freedom Restoration Act (RFRA) and how it followed or departed from the federal law signed by President Clinton or the laws in many other states that have them, but they miss the point I think. Our concept of what constitutes a public accommodation has, like so many other policies, laws, and regulations, seriously diminished our constitutional freedoms in the wake of the Civil Rights Act of 1964. They need to be pared back if we are to continue as a free people with the right to free speech, free association, and the freedom to practice our religion. If we don't, we open the doors to totalitarians that decide what we can do and mobs like the Chinese Red Guards enforcing this week's cultural fashion.

Two years ago, the brilliant Eugene Volokh described the path to this perdition in a three-part series. I'll try to summarize the key points and hope I can do his arguments justice, but if this is an issue you care about I hope you will take time to read them all. After struggling back and forth on what range religious exemptions should be considered -- for example, we cannot tolerate a religion that compels murder -- the Supreme Court decided Employment Division v. Smith. The case was widely condemned and Congress passed the Religious Freedom Restoration Act. 

When a subsequent Court held that the federal law exceeded its authority "about a dozen states enacted similar state-level RFRAs as to state law, and about a dozen more interpreted their state constitutions to follow the [earlier] Sherbert model rather than the Smith model.

Therefore, the rule now is that there is a religious exemption regime as to federal statutes (under the federal RFRA), and as to state statutes in the about half the states that have state RFRAs or state constitutional exemption regimes. Religious objectors in those jurisdictions may demand exemptions from generally applicable laws that substantially burden the objectors' practice, which the government must grant unless it can show that applying the laws is the least restrictive means of serving a compelling government interest.

The problem of accommodating religious freedom with the freedoms of free association, property rights, freedom of speech, and religion have been made far more complicated by the expansion of public accommodation concepts far beyond their intention as David Bernstein explains: 

[P]ublic accommodations laws, especially at the state and local level, have expanded way, way, beyond their original purpose that previously excluded minorities are served in restaurants, hotels, and the like. This has happened more via aggressive judicial interpretation of the language of these laws than from the laws themselves, which were phrased to not infringe unduly on private behavior.

For example, the Boy Scouts of America v. Dale case involved the courts of New Jersey declaring that the membership policies of the Boy Scouts violated the state's ban on discrimination in places of public accommodation. This even though the membership policies of the Boy Scouts are clearly not a "place," the Boy Scouts of America is not an "accommodation" in the usual sense of the word, and the membership policies of private organizations are not "public." [snip] Besides that, the decline of the principle that a business owner has at least some right to exclude what he deems undesirables has led to some very bizarre cases, none more so than the one described below, which a VC commenter alerted me to.

Here's the story, from a VC post from 2006:

There is a German restaurant called the Alpine Village Inn, in Torrance California. A group of four neo-Nazis went there to eat, each wearing a lapel pin with a swastika on it. The management asked them to take off the lapel pins. They refused. The management asked them to leave. They refused. The management called the police, who arrested them.

Then, remarkably, the Southern California ACLU gets involved, and sues the restaurant for calling the police on the Nazis! This much I've confirmed from media accounts. According to the commenter who first alerted me to this story, "the defendants' insurer eventually settled following unsuccessful pretrial challenges to the complaint, believing they could not prevail under California law! "I'm informed that the restaurant actually lost at trial, and the insurer refused to foot the bill for an appeal.

Hostility to Private Property Owners Underlies Much of these Matters

Bernstein says the principle in the Alpine Village Case seems to be hostility to private property owners and not "civil rights". And frankly, it seems to have been at least one underlying theme of the attacks on Memories Pizza (and Chik-Fil-A some time ago.) In both instances no gays were denied service and gay rights were in my opinion a red herring, covering anti-property rights and moral sneering at white Christians under a veneer of protecting gay rights.

Are the gotcha media and state anti-discrimination cops checking out Moslem bakeries? (Crowder did in Dearborn, Michigan) and found many would not bake wedding cakes for a gay couple. 

They aren't, and this highlights another problem with expanding public accommodation beyond limited boundaries: Discriminatory enforcement.

The Crowder experience confirms with what Friedersdorf (supra) describes of the attitudes of those who run these pop and pop businesses:

What do white evangelicals, Muslims, Mormons, blacks, conservative Republicans, and immigrants from Africa, South America, and Central America all have in common? They're less likely to support gay marriage than the average Californian. Over the years, I've patronized restaurants owned by members of all those groups. Today, if I went out into Greater Los Angeles and chatted up owners of mom-and-pop restaurants, I'd sooner or later find one who would decline to cater a gay wedding. The owners might be members of Rick Warren's church in Orange County. Or a family of immigrants in Little Ethiopia or on Olvera Street. Or a single black man or woman in Carson or Inglewood or El Segundo.

Businesses like Apple and States like Connecticut and Cities like Seattle and San Francisco Should Be Ashamed of their Pandering to Mob Think

Unhappy with the Indiana RFRA, in which the state struggled as have others with balancing religious freedom and competing state interests in non-discrimination, mayors in cities like Seattle and San Francisco, the governor of Connecticut, and Apple (which promotes its business in such gay paradises as Saudi Arabia ) hypocritically condemned Indiana and some called for boycotts of the state's businesses.

Professor Ann Althouse notes, the absurdity of picking on Indiana, when it's the RFRAs (and I'd say the expansion of public accommodation concepts) to blame:

Indiana has focused attention on RFRA laws, but it's stupid to focus on Indiana. These laws are all over the place. Understand them. Understand how they apply in many different scenarios and how they are limited by courts in their application. Understand that if we're going to relieve religious believers of the burdens of generally applicable laws, courts are going to have to avoid preferring one religion over another. You can't accommodate the religions you agree with or think are sweet and fuzzy and say no to the ones who seem mean or ugly. We need to figure that out. If, in the end, you think the Indiana RFRA is a bad idea, check that map and see if your state has RFRA (or a RFRA-like state constitutional provision) and push for repeal in your state. And get after Congress. Congress started it. Unless you're Hoosier, leave Indiana alone. Stop otherizing Indiana.

AND: I had to wonder What does Garrett Epps think about this? Because Garrett Epps wrote a whole book about how terrible it was for the U.S. Supreme Court to deny special exceptions to religious believers, especially in that case where Native Americans wanted the freedom to use peyote. As I predicted, Epps is otherizing Indiana.

Odder still, many of those who criticized Scalia's views that the legislatures, not the Courts, should decide these issues have now done a back flip.

The RFRAs "largely implement the religious exemption rules that Justice Brennan and the ACLU had long argued for -- and that Justice Brennan and the ACLU had sharply criticized Scalia and others for overruling. "

Scalia's view was that it was unwise to leave such balancing decisions to courts, that the legislatures should do that. Now many on the left embrace that view because in the RFRAs they can remove religious exemptions from anti-discrimination.

Wouldn't it be saner and more constitutionally consistent to simply pare back the concept of what constitutes a "public accommodation" needing state intervention?

Congress and state legislatures should determine that except for a limited number of businesses -- hospitals, hotels, and restaurants, public transport, educational institutions and such -- private businesses are not public accommodations. Anti-discrimination laws should be applied only in those few cases where everyone needs reasonable access. Why should the government be involved at all in the business of florists, bakers, photographers, and catering services, including those by pizza parlors? Is the right to be free from offense not trumped by more significant constitutional rights, which would not be subject to shifting tides of either judicial or legislative fashions? In two days, thousands of Americans kicked in almost a million dollars to protest such intrusions on freedom. It's time to listen to them. It's certainly easier to pander to special interests and cover them with protective legislation, but it does seem that with good reason the public is not happy with that direction.