Some of the pushback I get when I argue against expanding public accommodation laws to cover sexual orientation and even scaling back the laws that we already have to allow for more individual liberty in commerce is that the religious conservative opponents will continue to benefit from the law that they refuse to expand. That is to say, despite my wishes and probably the wishes of many libertarians, protections against discrimination on the basis of religion are not going to be wiped from the books. Regardless of whether sexual orientation or gender identity are added to federal discrimination laws, it will remain a violation in several different ways for gay people to discriminate against evangelical Christians, for example.
Sen. Ted Cruz (R-Texas) is now getting some attention on the campaign trail for making the libertarian argument on the matter: He thinks gay florists should be able to refuse to provide flowers to Christians on the basis of their deeply held beliefs.
This all first came up last week when recently out actor Ellen Page showed up at a Ted Cruz barbecue in Iowa to confront him on his conservatism on gay issues. In his defense of religious liberty he argues that Christian business owners should not be required to host or provide goods for same-sex marriages, and that the reverse is true: "Nobody has the right to force someone else to abandon their faith or their conscience. Imagine, hypothetically, if you had a gay florist. And imagine that two evangelical Christians wanted to get married and the gay florist decided, 'You know what? I disagree with your faith. I don't want to provide flowers.'" After Page says the gay florists should provide the flowers, he responded, "And I would say the gay florist has every right to say 'If I disagree with your faith and don't want to participate … then you know what? There's lots of other people you can buy flowers from.'"
The Cruz vs. Page exchange hit the triumvirate of gay, political, and celebrity blogs and outlets last week. It's not clear, though, that people actually watched the exchange because Cruz talked about the same attitude in a subsequent interview with NewsmaxTV and it's making the rounds in gay and civil liberties blogs as though this a new thing. Watch the interview below:
Now, as consistent as Cruz's beliefs are here, it does not seem to come with any sort of policy recommendation that would follow suit. On the federal level, he would have to strip religion from the public accommodations section Civil Rights Act of 1964. But states have their own much broader public accommodation laws anyway, and he would be unlikely to be able to do much about them as president.
In fact, after reading some of the responses to Cruz's comments on other blogs and sites, I feel the need to get a little pedantic and correct some misunderstandings. Under federal law, florists can turn away customers for whatever bigoted reasons they want (except for disabilities, actually!). Florists are not considered a public accommodation under the Civil Rights Act of 1964. It would not be "a federal crime," as this writer at The New Civil Rights Movement seems to believe. And it would certainly not be a violation of the Constitution, which seems to be what this writer at gay blog NewNowNext is saying.
It would instead be a violation of state public accommodation laws, which is why all of these lawsuits are happening on the state level. It's not just because sexual orientation is not currently included in the federal law. The federal list of public accommodations is very restrictive, covering restaurants or places that serve food, hotels, entertainment venues, and gas stations. Take a look at the Department of Justice's list of complaints for violations of federal public accommodation laws, and note that they're primarily against restaurants, hotels, and clubs.
The newly introduced Equality Act, in addition to adding sexual orientation and gender identity to existing federal discrimination laws, would drastically increase the federal definition of public accommodations to include florists and pretty much every other consumer business or service in the country.
In any event, Cruz's extension of his argument is probably not likely to be treated seriously among gay voters. That might be because at the same time he's calling for consistency in allowing businesses in letting their conscience dictate practices, he is one of only four Republican presidential candidates (Ben Carson, Rick Santorum, and Bobby Jindal being the others) to sign the National Organization for Marriage's pledge to support, among other things, a constitutional amendment that "protects marriage as the union of one man and one woman." That's not religious liberty, Cruz.