There seems to be an increasing number of controversies surrounding businesses that refuse to sell products or services to certain people or members of certain groups. Consider the Colorado case of Masterpiece Bakery, where a cake shop owner refused to bake and sell a cake for a gay wedding ceremony. Or the New Mexico case of Elane Photography, where a professional photographer refused to snap pictures at a civil union ceremony of two lesbian women.
Typically, these cases are framed and discussed publicly as a conflict between the religious views of some pitted against the alleged civil rights of others. The owners of Masterpiece Bakery and Elane Photography, for example, were both Christians who argued that it violated their religious convictions to participate in any way, even as hired vendors, in a ceremony involving a homosexual relationship. The potential customers in both cases claimed that they possess a “civil right” to purchase a cake from Masterpiece or photography services from Elane, respectively.
Given the vast confusion of what “civil rights” means today – given that many people seem to equate a “civil right” with any wish, desire, or demand – I suspect we will see more, not fewer, such cases in the future.
TWIST OF TURNS OF CONTROVERSIES
But now we are seeing other kinds of controversies, similar, yet with striking differences. Recently, in Colorado, a well known gay bar, The Wrangler, refused to admit a gay man. The Wrangler defended its actions by pointing to the fact that the gay man in question was dressed in drag, and his appearance did not match the picture on his driver’s license (unlike voting, some believe an ID is still necessary to enter a bar).
But there’s likely more to the story. The Wrangler is famous for catering to “bear” gay men – apparently gay men who happen to be on the burlier side of things. Let us suppose, as a hypothetical, that the reason The Wrangler refused admission to the drag queen had nothing to do with an ID, but rather the owner and staff of The Wrangler simply don’t want effeminate-looking gay men in their bar. In such a hypothetical case, has The Wrangler violated the “civil rights” of a gay man donning a dress, a wig, and lipstick?
This points to other potential controversies: If a Christian bakery owner refuses to sell its products or services to a man because of where the man puts his penis, what about a business that refuses to sell its products or services to a man merely because he HAS a penis? If the latter is as wrong and illegal as the former, then every women-only fitness club is guilty of serious civil rights violations.
FROM CONFUSION TO RIDICULOUS
At this point, however, we seem to have reached a conclusion of ridiculousness. And that ridiculousness is caused entirely by the confusion and misunderstanding of what is and is not a civil right. More to the point: Each and every of these controversies can be resolved, and the civil freedom of all American citizens can be protected, by recognizing that these controversies do not involve civil rights at all. Each and every one of these controversies is a question of property, not civil rights.
In the cases of the bake shop and the photography shop, the real dispute has nothing to do with gays. Or religious liberty. Or civil rights. These cases present the question of property rights, pure and simple. And either we the American people believe in the right to personal property, or we do not. Everything else flows from our decision about that basic question.
CLARITY ON CIVIL RIGHTS
A “civil right” is a right created by the civil polity that prescribes by law the rules for how citizens participate in the civil government of which they are part and which they created and authorized, which also aim at securing the equal, individual natural rights of all citizens. Laws determining when and where elections will be held, how ballots will be designed, and the qualifications to vote, are examples of civil rights legislation. The right to a trial by jury, and the right to be secure in one’s home and property from warrant-less invasions by police, the right to run for and be elected to public office, are other examples.
GROUP “RIGHTS” ARE NOT CIVIL RIGHTS
As all people possess the same, equal NATURAL rights – the right to their own life, their own mind and thoughts and opinions, their own body, their own free pursuit of happiness – then all citizens ought to possess the same, equal civil rights. There are no special “civil rights” for gays, racial or ethnic groups, women, farmers, bankers, oil tycoons, religious believers, or any other group or category of people. Any civil rights legislation that identifies any group of people and grants special “rights” based on membership in that group is immediately suspect and almost certainly a violation of the principle of equal protection of the laws.
NO CIVIL RIGHT TO BUY A CAKE
There is no “civil right” to have someone else bake a cake for you. We know this, because no one has a moral or civic or legal obligation to bake a cake for you. Period. Regardless of who you are or what kind of sex you prefer or what gods you pray to or the color of your skin or whether you are rich or poor, every bakery could close tomorrow and tell you to go bake your own cake. And that would violate not one civil right of yours as an American citizen. You’d still be protected by law in your right to vote, in your right to be secure in your home, in your right to a trial by jury if ever you are accused of a crime.
BUSINESS PROPERTY IS PRIVATE PROPERTY
Every privately owned business is private property, no less than a homeowner’s home is private property. A property owner, including business owners, may welcome or not welcome anyone he or she pleases. Further, everyone else may choose freely to go to some other business — just as everyone is free to visit the homes of friends who welcome them, and everyone is free not to visit the homes of people they don’t like. But no one is free to visit the home or the business of someone who doesn’t want their company or their business. If one bakery owner wants to bake no cakes for gays, that’s his free choice. And if another bakery owner wants to bake cakes only for gays, and no one else, that is his free choice. If a gay bar owner wants to serve “bears” only, that’s his free choice. And if another gay bar owner wants to serve only cross-dressers, that’s his free choice. Period.
EVERY CUSTOMER IS A SELLER, EVERY SELLER IS A CUSTOMER
The dichotomy between “customers” who have some kind of special civil rights in the market place, and “sellers” who have some kind of special civic obligations in the market place, is false. Every “purchase” in the market place is or ought to be a mutually voluntary exchange.
In the case of a bakery, the owner has a cake. The potential customer has cash. In order for there to be a legitimate exchange, the cake owner must agree to sell his cake for the other man’s cash, and the cash owner must agree to sell his cash for the other man’s cake. If either disagrees, no exchange, no sale, ought to happen. And it matters not a whit what one person believes about any deity, or the other’s romantic or sexual preferences. Period.
EQUATING PURCHASES WITH “CIVIL RIGHTS” REMOVES LIMITS ON GOVERNMENT POWER
Any government powerful enough to tell one person what he must do with his cakes, or his shots of whiskey, or to whom he must offer a gym membership, is a government powerful enough to tell another person where and how he must spend his own cash. There is no principled difference between a cake and cash. Both are personal property. Either we choose that government tells us what we must do with our property, or not. It’s up to us. But let’s be consistent.
SHOULD BUSINESSES FILE CIVIL RIGHTS COMPLAINTS?
After all, if a potential customer may demand by law that a business SELL its products or services to him regardless of his personal idiosyncrasies, why may not a business owner demand by law that a potential customer BUY its products or services regardless of the owner’s personal idiosyncrasies?
What would we think if business owners started filing civil rights violations complaints because some customers choose to shop elsewhere merely because they don’t like the religious views, or the sexual preferences, or the skin color, or the gender, of a business owner?
If it is to be illegal for a business owner to refuse to sell to someone because of the person’s race, ethnicity, gender, sex, or religious beliefs, etc., then so too it should be illegal for a potential customer to refuse to buy something from a business merely because of the owner’s race, ethnicity, gender, sex, or religious beliefs, etc. I don’t want that. Do you?
THE PUBLIC RELATIONS OF BUSINESSES AND THEIR CRITICS
In terms of public relations, any business owner likely will make himself look incredibly mean-spirited to others if he refuses to sell products or services to some. But that is the choice of every business owner. And I say: Let the market deal with them. Just as a business owner is free to refuse service to others, so others are free to refuse to buy the services of a business, and the business might someday find itself with no customers.
In terms of public relations, those who demand by law that a business serve him or her are likely to look incredibly arrogant, commanding, and even petty. Your view seems to be: Thou Shalt Sell To Me! How many dozens or hundreds of other businesses would be happy to sell a product or service to you?
Freedom includes the freedom to choose with whom to do business, and that freedom goes both ways in any business exchange. If a customer is free to choose where to spend his money in exchange for a product or service, so too a business owner is free to choose whose money he might accept in exchange for a product or service.
A. There is no civil right to make someone else bake a cake for you, or take your picture, or serve you a shot of whiskey in a bar, or offer you a membership in their gym.
B. Your free choice to do business with whom you want depends in no way on your views of gods, goddesses, saints, prophets, or related religious matters. It’s not as if members of one religion have some kind of individual freedom that others do not. So please don’t make these controversies about religious liberty. Everyone in the United States is free to worship as they please, or not worship at all, regardless of who buys which products and services from which businesses, and which businesses choose to sell products and services to which people.
C. Finally, no government has the rightful authority to tell you, or me, or any other American, with whom we must exchange our private property. Not even the estimable folks who sit on various Civil Rights Commissions. Lords of others’ property, they are not. In the name of freedom, we should demand protection for property, and insist that government get out of our private matters, which includes our businesses.