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Free Minds & Free Markets

Declining to Bake a Gay Wedding Cake Is Not the Same As Banning Gay Marriage

The point seems to elude The New York Times.

David Wimsett/ZUMA Press/NewscomDavid Wimsett/ZUMA Press/NewscomNext Tuesday the Supreme Court will hear Masterpiece Cakeshop v. Colorado Civil Rights Commission, which poses the question of whether the government violates a baker's right to freedom of speech when it compels him to produce a cake for a gay wedding despite his religious objections to same-sex marriage. Like most (all?) libertarians, I think this sort of coercion is wrong, although I'm not sure the relevant right is freedom of speech. The principle also could be described as freedom of religion or freedom of conscience. At bottom, as Scott Shackford has observed, the dispute is about freedom of association and freedom of contract. But one thing should be clear: It is the government, at the behest of an aggrieved gay couple, that is initiating the use of force. It is the baker, Jack Phillips, who is asking to be left alone. The question is whether he has a right to expect that—or, to put it another way, whether the government's use of force is justified.

That point seems lost on The New York Times. In a recent story about the Alliance Defending Freedom (ADF), which is representing Phillips, reporter Jeremy Peters conflates the baker's desire to avoid an implicit endorsement of gay marriage with a government ban on gay marriage. Under the headline "Fighting Gay Rights and Abortion With the First Amendment," Peters says Phillips and the ADF are trying to "blunt the sweep of Obergefell v. Hodges, the ruling that enshrined same-sex marriage into law." Obergefell said states must recognize marriages between people of the same sex. It did not say anyone is legally obligated to bake a gay wedding cake.

"We think that in a free society people who believe that marriage is between a man and a woman shouldn't be coerced by the government to promote a different view of marriage," ADF senior counsel Jeremy Tedesco tells Peters. "We have to figure out how to live in a society with pluralistic and diverse views."

That stance, Peters suggests (citing "civil liberties groups and gay rights advocates"), is a cover for "a deep-seated belief that gay people are immoral and that no one should be forced to recognize them as ordinary members of society." But whatever the ADF's views of homosexuality, it is entirely consistent to say the government should neither ban gay marriage nor force people like Phillips to endorse it.

That is the position taken by the Reason Foundation (which publishes this website), the Cato Institute, and the Individual Rights Foundation, which jointly filed a brief in support of Phillips. As the headline over a recent Daily Signal story notes, "These Groups Support Gay Marriage While Backing a Cake Baker's First Amendment Rights." According to the Times, however, they are "Fighting Gay Rights...With the First Amendment."

Peters also conflates government and private action in his discussion of National Institute of Family and Life Advocates v. Becerra, a case the Supreme Court recently agreed to hear that challenges a California law requiring anti-aborton "crisis pregnancy centers" to provide information about abortion. Just as Masterpiece Cakeshop has nothing to do with banning gay marriage, the California case has nothing to do with banning (or restricting) abortion. Both cases are about the constitutionality of forcing people to engage in speech that violates their moral principles.

As Peters sees it, "the First Amendment has become the most powerful weapon of social conservatives" seeking to "roll back laws on same-sex marriage and abortion rights." That gloss is not just misleading but blatantly false. If the ADF wins these cases, its victories will have no effect whatsoever on gay marriage or abortion rights. They will simply carve out some space for peaceful dissent from the social consensus on these issues.

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  • Fist of Etiquette||

    ...reporter Jeremy Peters conflates the baker's desire to avoid an implicit endorsement of gay marriage with a government ban on gay marriage.

    They know it's not the same thing but want it so badly to be the same thing. Public accommodation laws are the bane of the liberty of free association.

  • Diane Reynolds (Paul.)||

    I'm not seeing the joke in this comment.

  • NotAnotherSkippy||

    If you don't know who the sucker is at the poker table, it's you. If you can't see the joke...

  • ||

    If you can't see the joke...

    Keep explaining it until everyone sees the joke.

  • sarcasmic||

    Like most (all?) libertarians, I think this sort of coercion is wrong...

    Since when was that the libertarian stance? When it comes to same sex marriage, true libertarians support any and all government coercion against haters who believe marriage to be between a man and a woman. Because the only excuse for not supporting same sex marriage is hatred.

  • BestUsedCarSales||

    And the right to hate is not enumerated anywhere in the constitution. Check. Mate.

  • John Galt is back||

    And the right to hate is not enumerated anywhere in the constitution. Check. Mate.

    Doesn't have to be. Read the Ninth Amendment.

    "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

    Check. Mate.

    And it's spelled "checkmate!"

  • GILMORE™||

    the only excuse for not supporting same sex marriage is hatred.

    i support recognition of SSM for basic reasons of equality before the law - not any libertarian principles

    but i think its intellectually dishonest (not to mention poisoning the well) to claim that libertarians have no basis to insist that govt has no place making itself the exclusive and final arbitrator of voluntary contracts

    (as some very-weeny pedants argued; gays have always been able to merely *get married* - its just that there was no legal benefit enshrined and enforced by the state. adding more bennies to the pile of existing ones people already object to isn't typically a libertarian goal)

    really, any sentence which includes, " true libertarians support any and all government coercion against _____" should make libertarians do a double-take.

  • GILMORE™||

    *disclaimer:

    I may have entirely missed your intended sarcasm

  • geo||

    Actually as a libertarian I do not believe the state has the right to sanction, approve, or disapprove of any marriage, no matter what sex or how many people are involved. Marriage should not be included on tax forms, on insurance forms, on hospital forms, or any other state sanctioned process. All those arrangements should be a matter of contract. Who gets married should be between the consenting parties as private agreement. But, no one else should be required to approve of those unions or participate in their ceremonies. Baking cakes, taking photographs, making floral arrangements, or catering food should also be a matter of consent, and being forced to bake a cake for someone you do not want for a customer is simply thuggery by government. Belief in marriage as sanctioned by a religion or personal opinion, or scientific biological imperative is anyone's freedom and is not hatred, yet your statement implies to me that you must hate those who disagree with your views.

  • Teddy Pump||

    PERFECTLY STATED!!!!

  • retiredfire||

    And that's where libertarianism falls apart.
    There will always be humans, who will simply refuse to abide by a contract, especially if to do so is detrimental to them.
    Without government to handle such situations, by force if necessary, the concept of voluntary contracts falls apart.
    Marriage is a voluntary contract, when entered into, but much less so, when exited.
    Unless one supports individuals being able to resort to violence, when things agreed to, in the past, are not adhered to when the marriage dissolves, there needs to be the societally empowered source of violence to make the party at fault live up to their responsibility.
    And the first effort of any contract legal proceeding is to make sure the contract was legal, in the first place - thus government control of those marriage contracts, when they begin.

  • LST||

    Wow, you really don't understand how contracts work and are enforced, do you...

    It is the job of the courts to settle contract disputes. No need to have some government entity write the contracts for them to be enforceable.

  • DaveSs||

    You don't really need a government to settle a contract dispute.

    As part of the contract, the parties agree that any disputes under the contract shall be adjudicated by an arbitrator followed by a list arbitrators that both parties will accept as impartial.

    Enforcement to be done by a private security outfit should one party not voluntarily abide by the arbitrators decision.

    That is really not so different than a court and police doing the adjudicating and enforcing. The primary difference is that the costs are born only by the parties to the contract.

  • Mesoman||

    Absolutely right. I am amazed at how many Libertarians were in favor of state sanctioning of gay marriage. I fear that too many were mislead by the deceptive "equality" argument - the idea that gay marriage relationships are equal to heterosexual relationships because they both have the word "marriage" in them. In reality, gays marriages are substantially different - gay couples cannot conceive children naturally, and gay "marriages" do not have the sexual complementarity that has been part and parcel of marriage since the start of recorded history, and no doubt, well before that.

  • Normandy||

    First of all, there is no such thing as "gay" marriage-it's just marriage. Of course, a marriage of two men is equal to that of an opposite sex couple-don't let your religious kookery blind you or bias you-its just two non related adults in a legal union. Some straight dont have kids, many gays do-so that point is dumb too. And youre clearly ignorant about marriage-in China, same sex couples married and that predates your made up religion by a THOUSAND years. Know your place, buddy and for Zeus' sake, do some research!!

  • operagost||

    Being a complete tool-shed to the poster neither strengthens your argument, nor wins them to your side.

    I don't even have to address how you assume they're Christian and throw out both semantically and historically ignorant terms like "made up religion". I can just suggest, since I'm always interested in helping people improve themselves, that you actually do a little research on religions.

  • Mesoman||

    Absolutely right. I am amazed at how many Libertarians were in favor of state sanctioning of gay marriage. I fear that too many were mislead by the deceptive "equality" argument - the idea that gay marriage relationships are equal to heterosexual relationships because they both have the word "marriage" in them. In reality, gays marriages are substantially different - gay couples cannot conceive children naturally, and gay "marriages" do not have the sexual complementarity that has been part and parcel of marriage since the start of recorded history, and no doubt, well before that.

  • Just Say'n||

    I hate to see such discord between Reason and the NYT

  • JWatts||

    Just at a time when everything was golden between them.

    Come on Jacob, do you hate Reason? How can you expect the Grey Lady to link to Reason when you post hateful alt-Right articles, such as this!

  • Incomprehensible Bitching||

    Freedom of speech doesn't protect your right to make culinary art as you see fit, you bigot.

    Now bake my gay wedding cake and love it, bitch, because Social Justice is mine!

  • hpearce||

    " I'm not sure the relevant right is freedom of speech. The principle also could be described as freedom of religion or freedom of conscience. "
    Weak argumenst even if true

    Like normal, the article fails to mention the most important civil right - Freedom Of Association - which would allow people to refuse to bake a cake for someone regardless of the reason (assuming no contract)

    However to fully accept that right would have important repercussion on libertarians when it comes to the state which is probably why libertarians do not use it that often

  • John||

    The problem with this entire discussion is that it speaks about interactions between private parties using the same language and concepts that are used when talking about the power of government over people. Freedom of religion is something different and additional to the freedom of association in the 1st Amendment. The 1st Amendment was written to stop the government from prohibiting people from doing things. The government can't make it illegal for you to go to the church of your choice or associate with whomever you choose.

    The problem is that we have gone so far afield of that it is hard to talk about these things using the same language. I honestly don't think the people who wrote the first amendment ever contemplated that the government would step in and force people to associate. It just never occurred to them as even being possible. But starting with the CRA, that is exactly what the government does today.

    Freedom of association and freedom of religion along with it effectively died with the passage of the CRA. If the government can force you to do business with someone for any reason, then it can force you to associate with someone for any reason it chooses. There is no stopping it at that point.

  • NotAnotherSkippy||

    Literally read the sentence after the one you quoted.

  • Holmes IV||

    Did you even read the next sentence?

    "At bottom, as Scott Shackford has observed, the dispute is about freedom of association and freedom of contract."

    FFS...

  • Tony||

    But it's not being argued that way.

  • epsilon given||

    That's because about the only right that the Supreme Court recognizes nowadays is Freedom of Speech. But, hey, that's like, 1/4 of one Amendment, so it's all good, right?

  • ||

    But, hey, that's like, 1/4 of one Amendment, so it's all good, right?

    If you consider 1/4th of an Amendment that allows White Supremacist Nazis to commit violence against minorities with their words... sure.

  • BestUsedCarSales||

    However to fully accept that right would have important repercussion on libertarians when it comes to the state which is probably why libertarians do not use it that often

    I'm curious what anti-libertarian repercussion comes from that?

  • sarcasmic||

    I was wondering that myself.

  • BestUsedCarSales||

    It makes me think of the NN invasion that happened last week. When someone came in and laid a sick burn on libertarians. They said, "I hope this comes back to bite you in the ass you fucking libertarians. I hope you get no FDA next, and then what are you all going to say 'I'll just grow my own food?' not likely."

    It was a great example of an extreme lack of knowledge of libertarian arguments that their ironic consequence of rejecting NN was no FDA.

  • BestUsedCarSales||

    Did I get banned again?

  • Mickey Rat||

    While I agree that freedom of association should be the relevent argument, the cake shop's lawyers are obliged to argue the case in the way that is most likely to win. Unfortunately, SCOTUS has shown that it considers association and contract to be very constrained liberties, and speech one that they will consider more vital. It is soewhat perverse,but t is how court cases work.

  • C. S. P. Schofield||

    The problem with that is that the battle of freedom of associations has been fought and lost when we as a society decided (or allowed it to be decided for us) that bigots and sexists could not run businesses that excluded their pet hates. No all white lunch counters, no all male clubs. And most people feel a smug satisfaction about this, without thinking that maybe people with unpopular opinions should be allowed retreats where they can be comfortable without having to fight the rest of society. Yes, at some point we need to revisit that, but we need to do it at a point when we have some hope of winning a major reversal.

  • Normandy||

    we will never allow such a reversal-remember, bigoted religious kooks are dying off-not multiplying

  • Jay Dubya||

    I'm not sure whether this point holds. US society remains filled with exclusionary clubs and societies. Every religious institution is exempt from public accommodation: have you seen Catholics, orthodox Jewish temples or Muslim imams being sued for failing to appoint women or gays as religious leaders of one sort or another? Conversely you have all black colleges, gender specific groups of all kinds from travel tours to professional networking groups, etc etc etc. Exclusion remains not merely a fundamental part of US society but a fundamental part of all human interaction. Part of the absurdity of the accommodation laws is that even their supporters do not agree that they meet the universalism that is the basis for any sound law - eg prohibiting theft from all people meets the universalist standard of justice. Prohibiting theft from only left handed people fails to meet the standard and is unjust.

  • Jay Dubya||

    But getting back to the point I made about exclusion as a fundamental part of human interaction. Every club or clique necessarily excludes all those who lack membership. Part of membership in a club entails the notion: I would rather spend my time w members of my club than others. A similar notion underlies business. When I accept a contract, I am saying I will commit a certain period of time to the interest of another party to the exclusion of all others. This is a necessary predicate because we are humans and not God's - we can only do one thing at a time.

  • Jay Dubya||

    Now as both a Jew and an Irishman I can fairly say that I have personally benefitted from public accommodation, with "No Jews, No Irish" being two thirds of the typical racists requirement for entry. I can also say I would be outraged, fairly, by such a sign were I to see it today. My argument is not therefore based in the notion that a return to a time when a copy of The Negro Motorists Guide was a necessary precaution for African Americans seeking to safely travel through the nation. That said a No Jews No Irish sign provides me with valuable information as a consumer - I surely would rather set my money on fire than do business with an individual who feels this way about me & my family. Accommodation laws rob me of this information. One thing I am sure of today more than I ever have been in my life: the US is no less a nice of racists today than it was in the 19- or 18- sixties, yet today Americans have become so enamored of their own righteousness that they would point to accommodation laws as evidence that racism is fixed or close to it (as though such a thing we're possible), instead of internalized & left to fester in the darkest recesses of mens hearts.

  • John||

    That stance, Peters suggests (citing "civil liberties groups and gay rights advocates"), is a cover for "a deep-seated belief that gay people are immoral and that no one should be forced to recognize them as ordinary members of society."

    Even if that were true, who cares? It is a free country. People are free not to like or accept gays. The government may not be free to do that but people sure as hell are. That statement is a real tell about what the Times author actually believes. The point for this guy is not that gays get married or live in peace. That is nice but it is not the ultimate end. The ultimate end is that no one is allowed to hold any opinion about gays other than complete acceptance.

  • Enjoy Every Sandwich||

    The ultimate end is that no one is allowed to hold any opinion about gays other than complete acceptance.

    And the people who espouse that view don't seem to understand how dangerous it is. Having the government police our beliefs will not end well, and those who thought it was a good idea will not be immune. You never know just who is going to end up in charge of Leviathan.

  • John||

    You are right. The other thing is that the Founders didn't enshrine the freedom of religion in the BOR because they had a hard-on for God. They did it because they had seen the religious wars in Europe and understood that once governments start screwing with people's religion and compelling them to do things that are against their conscience, people start picking up guns and killing each other over politics. Letting government stomp on people's religious beliefs raises the stakes of politics and the chances of people resorting to violence over political differences exponentially. You can't overstate how foolish these idiots are.

  • sarcasmic||

    I dunno. Sometimes I wonder if they want people to start killing each other because they feel that they will be on the winning side, and because they truly want those who disagree with them to die.

  • John||

    People in free societies generally don't care much about politics or government. They only start caring when government gives them a reason to care. Going after people's religion gives them a very compelling reason to care and in fact makes it impossible not to care.

  • sarcasmic||

    Leftists always care. Like that "If you're not outraged you're not paying attention" bumper sticker. They're always on the lookout for someone who deserves to be coerced or killed. Like haters who hate homosexuals so much that they hate same sex marriage, because they're so full of hate. People like that make people with that bumper sticker angry enough to want to kill someone (as a side note, you'll find that people with that bumper sticker don't want the people to have guns because they don't trust themselves with guns and because they don't want the victims of their outrage to be able to fight back).

  • John||

    Yes leftists always care. But that is because they don't want society to be free.

  • sarcasmic||

    There is always someone who needs to be controlled.

  • Bra Ket||

    I've pointed this out before, it's a "one-party" mentality and they will only tolerate a single party rule. Elections either have consequences that they want, or they turn to the courts to enforce their agenda undemocratically. Failing that they turn to riots and terrorism.

  • NotAnotherSkippy||

    1984 is a cookbook.

  • Tony||

    The government isn't policing anyone's beliefs. Discrimination is an action.

  • DarrenM||

    If you do something, that's an action. If you don't do something, that's an action. There is no way to win this game, which is how those with the power want it.

  • Tony||

    It's not a game, it's physics. There is no such thing as doing nothing. And at any rate, telling gays to get out is not doing nothing.

  • MyCroftxXx||

    OK. if the DONALD(subsitute whatever ecky person you wish) wanted a cake from your shop made of solid gold or whatever. you would be forced to bake it. regardless of your personal feelings? no. you would say piss off, and that would be your right. look up Dr. albert Battel.

  • Tony||

    I could refuse but not because he is an orange-American, a fake Presbyterian, or severely mentally disabled.

  • Eric Bana||

    The baker doesn't have a "No Gays" policy, though. He would bake cakes for people who were gay, but he won't bake cakes intended for a same-sex marriage ceremony for anyone.

  • Normandy||

    idiocy-we never cared about acceptance-worship any made up god youd like-but we demand equality under the law

  • Bra Ket||

    Not a free country, that would require the rule of law. People are to be categorized as either goodly or wicked, and the later group must be made to publicly repent then purged anyway.

  • John||

    Yes. that is the idea.

  • Mickey Rat||

    That line from Peter's article would suggest that he thinks the belief that homosexual activities are immoral should be illegal, much less any public expression of that notion. He is fully advocating thoughtcrime as the proper concern of the State.

  • David in the O.C.||

    The owner isn't being prevented from having an opinion about gay people. Just like 50 years ago, the racist owner of diners weren't prevented from having whatever feelings they had about black people. They were just prevented from acting out on their feelings, and were forced (via the Civil Rights Act) to provide service to those black people that they disapproved of. Apparently, treating citizens equally in society was more important than the chosen feelings of business owners.
    The idea that this baker is giving their personal approval of every impending marriage (via the making of wedding cakes) is absurd. The customer couldn't care less if the baker personally approves of their relationship. They simply want cake #7 that they picked out of the photo book. The owner's chosen religious beliefs are none of the customers' business, and vice versa.

  • operagost||

    Bakers have to personalize and deliver cakes. They're not just cranking out a widget and handing it over the counter.

  • ||

    The ultimate end is that no one is allowed to hold any opinion about gays other than complete acceptance.

    Acceptance is the wrong word. What's being proposed (if only limited to cakes and weddings) is unquestioned subservience. This can be seen elsewhere and in other cases where jewelers and bakers have served gay couples and still been sued for discrimination for previously expressed opinions or religious but not overtly anti-gay displays.

  • Old Mexican's Speedos||

    ... although I'm not sure the relevant right is freedom of speech. The principle also could be described as freedom of religion or freedom of conscience.


    It's very clear you're severely confused, Jacob. The only underlying principle here is PROPERTY RIGHTS.

    Each of us -- you, me, everyone else -- have the right to do what we fucking want with our own property including not selling it to a gay couple. Any excuse to limit this right is nothing less than justification for thievery.

    So stop being confused.

  • NotAnotherSkippy||

    Can no one read the fucking piece?

    The principle also could be described as freedom of religion or freedom of conscience. At bottom, as Scott Shackford has observed, the dispute is about freedom of association and freedom of contract.
  • Old Mexican's Speedos||

    Freedom of Contract is a consequence of Property Rights. Don't muddle the issue.

  • John||

    But freedom of association isn't. I don't have to own any property to be free to associate with whomever I want. The problem here is that these people are being forced to be a part of something they do not want to be a part of. The fact that the association involves contract and property is immaterial. They could be pennyless and forcing them to be a part of the wedding would be just as wrong.

    Worse, considering this a property issue makes economic rights something different than free association rights. The problem with that is that the right to contract is not an enumerated right in the BOR. This is why Progs always see these issues like you are seeing them, one of property and contract. Since there is no explicit right to contract, they then argue it can be limited without running afoul of the free association clause. You are just feeding into that argument.

    No, this is about association. The freedom of contract and to own property are a necessary consequence of our right to free association. Therefore, the freedom to contract with whomever we like is just another association and protected under the Constitution like every other form of association.

  • Old Mexican's Speedos||

    Re: John,

    You are free to associate with whoever you want. The CRA does not stop you from associating with whoever you want. What it does is that it violates your right to use your PROPERTY as you want, under the canard of "public accommodation", if your intention is to engage in commercial activities. That's THIEVERY, committed by those who feel emboldened and entitled by the CRA and sanctioned by the State.

  • John||

    The CRA does not stop you from associating with whoever you want.

    It absolutely does. It forces me to associate with people by doing business with them. Telling me that I must sell to a black person is in principle no different than telling these people they must sell a wedding cake to a gay couple. The freedom of association necessarily must include the right not to be compelled to associate with people in addition to the right to associate with whomever you want.

    If you want to say that doing business with someone is not "association" under the 1st Amendment, then you are fucked because there is no enumerated right to contract or economic association. And thus, the government can restrict it however it wants, provided the restriction is rationally related to a legitimate government purpose. And that is exactly what the courts say and that is why economic rights are virtually unprotected in this country.

  • Zeb||

    It forces me to associate with people by doing business with them.

    But it does so by interfering with your property. You can decline to do business with them and either close up shop or pay some fines or something. Which I agree violates free association. But I think OM is right in this case that the root problem is a violation of property rights. No one is directly forcing anyone to make a gay cake. They are indirectly forcing people to do so by threatening their property.

  • epsilon given||

    What's this about "enumerated" rights? We would do well to remember the 9th Amendment: that just because a right isn't enumerated, doesn't mean it shouldn't be valued or protected.

  • BYODB||

    Now if only you could extrapolate that to immigration somehow.

  • sudon't||

    "I ain't baking no cake for no Mexicans! No papers, no cake, amigo."

    How's that?

  • NotAnotherSkippy||

    Bit rich for someone who conditionally defines property.

  • Diane Reynolds (Paul.)||

    which poses the question of whether the government violates a baker's right to freedom of speech when it compels him to produce a cake for a gay wedding despite his religious objections to same-sex marriage

    There's a word in the dictionary for forcing people to perform labor.

  • Old Mexican's Speedos||

    That word is RACIST!

  • John||

    It is a freedom of association issue. You are being forced to do business with and associate with people. How anyone can think "freedom of association" does not necessarily include the right not to associate with people is beyond me.

  • NotAnotherSkippy||

    Especially considering it comes from people who think reproductive rights includes killing things.

  • Diane Reynolds (Paul.)||

    Freedom of association is the reason for not wanting to perform the labor. Once the labor is forced from you, there's a single, easy to understand word that defines that.

  • John||

    My forcing you to do anything is in a strict sense, slavery, if you consider any forced action, even when it is compensated to be slavery. That is semantically correct but I don't really see why it is significant. We have a right to free association and that necessarily means the government cannot force us to associate and do business with people. It is really that simple. You don't have to bother with stretching the meaning of slavery.

  • Diane Reynolds (Paul.)||

    That's not "stretching the meaning" of slavery. It is slavery. It might be a slavery with a light yoke, but it's slavery nonetheless.

  • John||

    You don't have to do anything. You can always just not sell wedding cakes at all. And even if you are forced to sell it, you are given whatever price you ask. It is a huge stretch to call that slavery.

  • Diane Reynolds (Paul.)||

    Why is that a huge stretch? The bake shop chose not to engage in labor, and the state says they must. Focusing on the reasoning is why people get confused about whether or not it's gay marriage.

    I should be able to say, "No, I just closed up shop" and not give a reason. Is the reason for closing up shop magical? Do I have to state the reason for closing up shop, and if the state isn't pleased with that reason, can they force me to stay open?

  • John||

    You don't have to do anything. You can always not sell wedding cakes at all. And if you are forced to sell one, you are paid whatever your asking price. It is a huge stretch to call that slavery.

  • Diane Reynolds (Paul.)||

    They did choose not to sell wedding cakes, and they're being forced to.

  • epsilon given||

    John, by this reasoning -- that it's not slavery because the shop owners are paid (and it's not clear that they can charge any price -- would it be considered non-discriminatory if they charged $100,000 for a gay wedding cake, but only $500 for a regular one?) -- we can conclude that slavery never existed. After all, slaves are given room and board, are given food and health care, and are to a certain extent protected. Sure, they are forced to work, and forbidden from leaving the plantation. Why is that a problem?

  • retiredfire||

    Amendment 13 - Slavery Abolished
    1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

  • Normandy||

    It's called compassion

  • Diane Reynolds (Paul.)||

    If the ADF wins these cases, its victories will have no effect whatsoever on gay marriage or abortion rights. They will simply carve out some space for peaceful dissent from the social consensus on these issues.

    Another way of looking at is we're forcing people to participate in the rituals of others.

  • OpenBordersLiberal-tarian||

    I voted for Hillary Clinton in 2016, but I've heard the Libertarian Party nominee Gary Johnson supports forcing hateful bigots to bake cakes. I respect him for this principled stance, and it's why he was my second choice, just ahead of Jill Stein.

  • Old Mexican's Speedos||

    You seem to have no issue with such a casual use of the word "forcing".

    That says a lot about your mental stability. A lot that is frightening.

  • Just Say'n||

    You troll so good, I could have sworn this comment was from Hugh Atkson

  • Ken Hagler||

    "The principle also could be described as freedom of religion or freedom of conscience."

    And also involuntary servitude, although for some reason the Thirteenth Amendment has been sent down the Memory Hole.

  • Kivlor||

    You know, Sullum, this whole hand-wringing about the loss of our freedom of association rings awful hollow to those of us who were reading Reason back before the courts redefined marriage to include same sex couples, and declared homosexual "marriage" to be a right.

    You wanted this. And you didn't care if it cost the whole country the last ephemeral vestiges of their right to freedom of association as long as you got your trophy. What's wrong Sullum? This victory starting to taste a little Pyrrhic to you?

  • ||

    Freedom of Contract and Freedom of Association are two different things. It appears you're ready to be a writer for the NYT as well.

  • John||

    No they are not. Freedom of Contract is a necessary consequence and one form of freedom of association. It appears you are a progressive who thinks economic rights and the freedom to contract are not enumerated rights under the BOR.

  • Kivlor||

    It amazes me that so many people are incapable of seeing that by their very nature freedom of contract and freedom of association are inseparable--despite have distinctions. In order to have a contract, 2 parties must have an agreement without coercion. Telling someone they must enter into a contract with a party, or telling them they cannot enter into a contract with another party directly impedes their right to freely associate with those parties.

  • Kivlor||

    Yeah, I'm pretty sure they wouldn't have someone that put quotes around the word marriage when referring to the gayz. Even if you shift this only to Freedom of Contract (Contracts by nature imply association) you'll find that my criticisms are still quite valid. The last vestiges of such freedom were obliterated with the gay marriage rulings. Essential parts of a contract (a meeting of the minds, a mutual agreement) are no longer necessary, and Reason (including Sullum) cheered it the whole way.

    But if you have some meaningful criticism of my statement, have at it. Sullum, as I recall, was extolling in the buildup to this that embracing gay marriage would be a great blow against the government regulating our interpersonal relationships. Now he got his gay cakes. He should enjoy eating it.

  • John||

    For decades Libertarians correctly I think argued that government recognition of marriage was an antiquated and wrongful restriction on the freedom of association and contract. Government marriage does two things; sets the terms of the marital contract in the form of family law and forces everyone to recognize any marriage the government deems valid. Both of those things are a restriction on freedom and antithetical to Libertarians. But when gay marriage came along, they threw those concerns to the side and decided that a freedom restricting institution must in the name of equality be expanded to include gays. Gays were freer without government marriage. The only thing they didn't have was the right to force people to recognize their marriage and that is not something Libertarians should want anyone to have or want more people to have in the name of equality and fairness.

    Worse still, all of the good arguments against government marriage have now been lost. Instead of seeing government marriage as the restriction on freedom that it is, libertarians now portray it as either some welfare program that is great for those who get in on it or worse still a civil right.

  • Diane Reynolds (Paul.)||

    That's like saying if we gave one group first amendment rights, they'd eventually abuse them down the line by saying mean things to people.

    There's nothing inconsistent about wanting to extend the right of marriage to gay people, and condemning forced labor that the same (or new) activists are trying to push.

  • Kivlor||

    No, it's not. That analogy completely sucks, and doesn't fit the situation as it was, or even as it is.

    We aren't talking about gays getting to call heterosexuals who want nothing to do with them mean names. We are talking about granting gays a legal power to tell heterosexuals who want nothing to do with them that they must in fact associate with those gays. In other words you didn't grant gays a right, you stripped a right from heterosexuals that want to avoid them.

  • John||

    BINGO

  • Tony||

    Do gays get to avoid all heterosexuals if they want to as well? Or do we get to live our lives with you shoving your disgusting breeder habits in our faces every waking moment?

  • Kivlor||

    Tony, you can choose to not interact with heterosexuals any day of the week. And you can do it openly. And there's nothing us "disgusting breeders" can do about it. That's your right. And I'm glad to support you in your choice to avoid people like me.

    If you want to put up a "no heterosexuals allowed" sign up outside of your restaurant, I'm in favor of it.

  • Tony||

    So we agree that the law should treat straights and gays equally, contrary to your other post.

  • Kivlor||

    Where did I say otherwise Tony?

  • Incomprehensible Bitching||

    I'm pretty sure you should be required to bake straight wedding cakes on demand, because equality.

  • Diane Reynolds (Paul.)||

    What does forcing people to bake cakes for gay couples have to do with legalizing gay marriage? You're exactly as confused as the NYT author.

  • John||

    Gay marriage was never illegal. Gays got married all of the time. What didn't happen was government recognition of gay marriages. Government recognition necessarily involves forcing people to recognize marriages. That is what baking wedding cakes has to do with it.

  • Kivlor||

    "what does forcing people to bake cakes for gay couples have to do with legalizing gay marriage?"

    That question basically means you have no understanding of the entire discussion. Yet you're accusing the grown-ups talking about it of being the confused parties? That's rich.

  • Diane Reynolds (Paul.)||

    I'm the only one who does have an understanding of the discussion. You're claiming legalizing gay marriage and forcing people to bake cakes is inextricably linked. Jacob Sullum and I are claiming they're not.

  • Kivlor||

    Because gay marriage wasn't "legalized". It was declared a right through judicial fiat. These are two very different things and they have very different consequences.

  • John Galt is back||

    Because gay marriage wasn't "legalized". It was declared a right through judicial fiat.

    That's the Court's job,

    Pull your head out of your ass long enough to READ THE CONSTITUTION
    The 9th and 14th Amendment ALONE make a monkey of you.

  • John Galt is back||

    Jacob Sullum and I are claiming they're not.

    Umm, HE is demanding special rights ... based on religion ... in a nation founded on Separation. Are you? First principles. Abide by them,

  • Butler T. Reynolds||

    "These Groups Support Gay Marriage While Backing a Cake Baker's First Amendment Rights"


    Such a thing is completely incomprehensible to most progressives and conservatives. Makes their collective brain explode.

  • John||

    It is actually nonsensical to anyone who understands what government recognition of marriage means. You can be married without the government. Indeed, Libertarians have been advocating for that for years. Gay could and did get married before "gay marriage". What they could not do was get their marriages sanctioned by the government. The entire point of government sanction of marriage is to force people to recognize it. So yes, it is a bit odd to argue on the one hand that the power of government should be used to force people to recognize gay marriages and then on the other argue that the government cannot then force people to sell cakes to gay weddings if they also sell cakes to straight ones. If Libertarians are uncomfortable with the government forcing people to recognize gay marriages, they should not have embraced the cause of government recognition of gay marriages, because that is all government recognition is.

  • Diane Reynolds (Paul.)||

    It is actually nonsensical to anyone who understands what government recognition of marriage means. You can be married without the government. Indeed, Libertarians have been advocating for that for years.

    Yes, but as KMW rightly said, libertarians can't turn back the regulatory clock on everything that's already in place. There are benefits conveyed with legal marriage that are hence denied to gay people wishing to seek marriage. Yes, if we could turn back the regulatory clock and undo all the specious government benefits showered upon those foolish enough to tie the knot, that's an argument on the meaning of marriage itself, but because we can't, we at least allow people to be equal before the law, and receive the benefits of the state by having their marriage recognized by same.

  • John||

    Yes, but as KMW rightly said, libertarians can't turn back the regulatory clock on everything that's already in place. There are benefits conveyed with legal marriage that are hence denied to gay people wishing to seek marriage.

    They are not benefits. They are restrictions on freedom. Think about what you are saying here. The problem is that straight couples can use the force of government to make people recognize their marriages and gay couples cannot. And according to you and KMW the solution to that problem is to let gays get in on the action too? In what other context is the proper libertarian response to restrictions on freedom that we need to expand said restrictions to everyone if we are going to have them? Really?

    The bottom line is that people like KMW like gays and don't like SOCONs and don't really give a flying fuck if the socons get screwed so the gays get what they want. Everything else is just rationalization for that. if government marriage is a restriction on other people's freedom, and it clearly is, then no one has a "right" to it and therefore there is nothing wrong with telling gays, polygamists or anyone else they can't have it while Libertarians are telling those who do they need to get rid of it as well.

  • Tony||

    Eagerly awaiting news of your divorce, freeing you from the horrible restrictions of government marriage.

    My god do you wake up in the morning thinking of new ways to be the world's biggest hypocrite?

  • John||

    Divorcing would not free me from the horrible restrictions of government marriage. Family law and the enforced terms if I ever did choose to divorce are the restrictions of government marriage.

    Like most subjects, Tony you are just too stupid to even understand what is going on. Look, everyone knows you are a hateful awful person who is happy to see anyone you don't like punished by the government. You don't need to remind us. Why don't you just leave it at that so the rest of us can have an intelligent conversation?

  • Tony||

    Regardless of how onerous the institution of marriage is, what possible excuse do you have for government permitting it for straight people but not gay people?

  • Diane Reynolds (Paul.)||

    They are not benefits. They are restrictions on freedom.

    What are you talking about? There are (according to NPR) thousands of benefits conveyed to married couples. There are spousal benefits for social security, cops spouses receive pensions for life when their idiot cop partner drives into a tree. Those are benefits.

  • DarrenM||

    There is good reason for government to sanction marriage. This is essentially a contract (in addition to the religious and cultural aspects) which needs the force of government to enforce. Gays could have had everything they claimed to want as far as rights and benefits and we just call it a "domestic partnership" or something other than "marriage". Even this was not enough, which exposed the real agenda.

  • ||

    Gays could have had everything they claimed to want as far as rights and benefits and we just call it a "domestic partnership" or something other than "marriage".

    So - it would be the same as marriage in every way, but gay people wouldn't be allowed to use the word "marriage" to describe it?

    And this wouldn't violate the First Amendment?

  • Azathoth!!||

    Well, no, not in every way.

    A 'marriage' is required to contain complementary genitalia.

    A 'domestic partnership'/'civil union'/'SSM' is not.

    There is, quite literally, something that can occur in a 'marriage' that cannot happen with a same sex couple.

    Thus they are similar, but not the same.

  • retiredfire||

    A homosexual "marriage" can never be consummated.

  • ||

    The problem is that straight couples can use the force of government to make people recognize their marriages and gay couples cannot. And according to you and KMW the solution to that problem is to let gays get in on the action too?

    That would be what, as Gilmore points out above, we would refer to as "equality before the law." Don't like the law? Change it. But don't argue that it should only apply to certain classes of people and not others and call that "libertarianism."

  • sarcasmic||

    Benefits like using government coercion to punish those who commit the thoughtcrime of believing that marriage is between a man and a woman.

  • BestUsedCarSales||

    It opens up a bigger can of worms even than that, where groups can convincingly create charges against others for many possible reasons. "I'm too busy to cater this wedding." becomes "I hate gay people and refuse to serve them." I don't know if that is happening now, but thoughtcrime puts tremendous power into the hands of the accuser.

    That's beyond the arguments you make about freedom of association though.

  • John||

    If you cannot act on your beliefs or state them publicly, you are not really free to hold them.

  • sarcasmic||

    It's like when the backers of adding homosexuals to the list of privileged classes said it wouldn't be used to redefine marriage.

    Foreseeable consequences are not unintended.

  • retiredfire||

    Just as the first thing totalitarian revolutionaries do is impose methods by which they will not have to face a revolution, the beneficiaries of staring something down the slippery slope - homosexuals being able to teach our children - will do whatever they can to not allow a similar start to something like removing acceptance for homosexual "marriage" from moving over the precipice.

  • Tony||

    Wrong. There is not only coercion on one side. You endorse taxpayer-funded government thugs ejecting people from the premises solely because they are gay. You are not on the side of peace, you are on the side of government being on the side of the bigoted owner. It's not necessarily invalid to choose that side, but you don't get to weasel out of the fact that it's government force either way when you're talking about the context of association and property.

    The owner wants to treat gay customers differently from how he treats straight customers. The SC might very well invent a new constitutional right to do just that, but at the moment it seems pretty clearly to violate state antidiscrimination law.

  • sarcasmic||

    Oh, you mean when the precious snowflake is told "No" by the owner, has a hissy fit, and becomes disruptive or worse? That's called trespassing. And it has nothing to do with anyone's sexual orientation.

  • Tony||

    In Colorado you can kick a customer out for being disruptive, but not for being gay. The owner did the latter.

  • sarcasmic||

    So saying "No" is the same as calling the cops and having someone arrested for trespassing?

    Learn derpthing new every day.

  • Tony||

    You just said they were trespassing. That implies a right to call the cops and have them dragged out, doesn't it?

  • sarcasmic||

    You are telling me that unwanted soliciting (forcing yourself onto another person) is not trespassing, and using government force to compel someone to serve you is not an initiation of force.

    Is that correct?

  • Tony||

    Depends on what the law says. I do not subscribe to your silly childish bullshit "The law is whatever god says it is, and by god I mean me!"

  • Kivlor||

    Only in Tony-Land is choosing to not associate with someone considered coercion.

  • Tony||

    It's coercion when you call thec ops to drag them out of your shop.

    The context is not your living room, it's a business that's open to the public.

    Perhaps you don't feel that there should be any laws protecting customers in that context. But at least you can agree that if we have laws protecting customers with respect to race and religion, we might as well add sexual orientation too so as to be consistent.

    Otherwise you're kind of endorsing a regime where antigay bigots get special rights. And only John actively endorses that view.

  • Kivlor||

    Tony, in what land do you live, where the first response of a shop-keep would not be to either ask, or tell someone to get out, but to call the cops? Telling the cops to drag you out comes when you refuse to leave after being asked to do so. This is normal, and a justifiable use of the state, because you are indeed trespassing. A business is still private property, not a public park.

    As to your dig at John, I've never seen him support anything of the sort. He's been pretty consistent over the few years I've lurked here.

  • Tony||

    Did I say it was the first thing? The point is what the law protects, meaning, in theory, whose side the cops take if it escalates to that.

    The law actually says that gay customers have to be treated the same as straight customers. The owner in this case wants the Supreme Court to invent an exception to this law that protects their right to discriminate based on the first amendment.

    Asserting that a thing is justifiable is not a convincing argument. I think antidiscrimination law is a justifiable use of government and I think that because I'm in favor of individual freedom. Why are you right?

  • Kivlor||

    Tony, if I own a bakery, and a straight white couple come in, and ask me to make a custom cake with something I don't like on it, I can refuse to make it today. And if they refuse to leave, I can remove them, with police power if necessary. The problem here is that you want a special carve-out for your personal pet demographic. You are not for individual liberty Tony, you are for collective privileges.

    (Well, I could do that prior to the gay cakes rulings. This may well result in no one being able to refuse anyone service. And that will be another major blow to the liberty of the people of this nation.)

  • Tony||

    Protecting sexual orientation means you can't expel a customer for being straight, either. No special carve-out. People who want to exclude sexual orientation are the ones who want a special carve-out for antigay bigots (in a way that is not permitted for racists).

    If you're in the habit of refusing to bake cakes even though your business is baking cakes, then I suppose you're not running afoul of the law, only sanity.

  • Kivlor||

    Tony, to explain my position, I start from these premises:

    "People have a right to own property" (which means they can use said property)

    "People have a right to associate with other people willing to associate with them." (The implication of this is that if you can choose to associate, you can choose to NOT associate as well)

    "People have a right to enter into contracts." (This necessitates defining a contract: ~voluntary agreement between two parties for an exchange of value. {eg property; services} A contract requires A) an offer B) acceptance C) consideration {an exchange of value} D) Mutual intent or a meeting of the minds)

    Now, suppose I own a bakery, and you want a cake. You want it to say "Wedding of Tony and Bradley, together 4ever. 2/27/18" And I don't want to make this cake, then can it be said that we have a contract? If I say "No thanks. You should try another baker. Good luck" have I violated your rights? If so, which ones?

    If I am forced to make this cake, which of the above rights have been violated?

  • Kivlor||

    In order to have a contract, you must first associate and second it must be done voluntarily. Which means forcing people to enter into a "contract" to bake a cake violates both of these rights. It further violates a person's right to property, because it forces them to dispose of it in a method that they do not wish to, when they are not violating anyone else's rights.

  • Tony||

    I get it, really. You don't like antidiscrimination laws. That's fine. But it necessarily means that you think the state should shift its priority from protecting black people from being kicked out of restaurants for being black to actually doing the kicking out. There is no difference in the use of force, there is only which rights you think are more important. And you've made plain which ones those are.

    I on the other hand see no reason to assume property rights are absolute, because they definitely aren't (you can't murder someone on your property). Public accommodation law is just another regulation on business to me.

  • Francisco d'Anconia||

    The law actually says that gay customers have to be treated the same as straight customers.

    And said law cannot be carried out without violating the owners First Amendment rights.

    You have just made the case that the law is unconstitutional.

  • Tony||

    It's well established in constitutional law that discriminating in a public accommodation business is not protected by the first amendment. Because it's not speech, it's action that harms people.

  • Francisco d'Anconia||

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

    Inaction is action.

    SMDH!

  • Tony||

    So I can sacrifice babies?!?

  • Gaear Grimsrud||

    You seem to be making the case that a state law can trump the BOR and that if the SC finds that law unconstitutional it is "inventing" a right to discriminate rather than protecting an enumerated right. Your reasoning is frankly bizarre.

  • Tony||

    Potato potato. I suggest that the "judicial activist" position is to find a first amendment right to discriminate against gays when it comes to "artistic expression" in commerce, that expression being making a damn cake like they do for everyone else.

  • retiredfire||

    It is not individual freedom for the government to force someone to do something, like not "discriminate".
    You contradict your own position.

  • John C. Randolph||

    Consider this possibility for a moment, Tony: you are a backer, running "Rentboy's Fabulous Rainbow Bakery", and a couple of Westboro Baptist Church assholes demand that you make them a cake and write "god hates fags" on it. Should you be forced to comply? After all, it's their religion, they're a minority, etc, etc.

    -jcr

  • sarcasmic||

    Not coercing is coercing because it requires coercing the coercers into not coercing, and that requires coercion.

    Thus liberty is tyranny.

  • Tony||

    Funny how your stupid little word games have the effect of excusing all manner of government brutality.

  • sarcasmic||

    Yes, Tony. Because freedom of association is government brutality.

  • Tony||

    It is when you want to enforce it.

  • sarcasmic||

    I think I get it now.

    Using government coercion to force others to serve you is not force, but saying "No I do not wish to serve you" is government brutality.

    Did I get it right?

  • Tony||

    Look asshat whether we're talking theoretical or actual government force, it applies equally to both cases. What happens when the customer refuses to leave when the owner says they don't want to serve them? Hm?

  • sarcasmic||

    What happens when the customer refuses to leave when the owner says they don't want to serve them? Hm?

    Then the person has ceased to be a customer and is now forcing themselves onto the owner. The customer is initiating force against the owner, and now force is justified in response.

    In your preferred scenario the customer demands to be served, then calls the police when the owner refuses.

    In both cases it is the customer who initiates force.

    In only one of those cases is government force justified.

    As a libertarian I say it is the former, as an authoritarian you say it is the latter.

    But to equivocate them is just wrong.

  • Tony||

    If an antidiscrimination law exists then it's the owner who initiates force if his reason is that the customer possesses a protected trait. What counts as initiatory force, especially when we're being as broad and metaphorical about it as you are, depends on what the law says. You're simply assuming the conclusions you want. According to the actual law, the owner trespassed on the customer's rights.

  • sarcasmic||

    What counts as initiatory force, especially when we're being as broad and metaphorical about it as you are, depends on what the law says.

    Sorry, Tony. I'm making an argument from principle, and now you're appealing to authority while moving the goalposts.

    Which means that you can't argue against my point. You have to resort to fallacies.

    I win!

    Thank you for playing.

  • sarcasmic||

    I'm not saying that the owner is in violation of statutory law as it is currently written and understood. I'm saying that the law is in violation of the principles of liberty.

    But you feel that liberty is tyranny, that freedom is something to impose upon people.

    Which only makes you another authoritarian asshole.

  • Tony||

    You think law is whatever you say it is, and I'm the authoritarian?

  • sarcasmic||

    You think law is whatever you say it is

    No, Tony. That's not what I said. I said that the law is in violation of the principles of liberty. Liberty being something that you despise.

    and I'm the authoritarian?

    Yes. You abhor liberty and fully support the initiation of force upon those who you don't like. You have no principles other than might makes right. That makes you an authoritarian.

  • DarrenM||

    In the case of the cake (this sounds like a Sherlock Holmes mystery), there was a refusal to bake a wedding cake for a gay wedding. From what I've read about it, it was not a refusal based on the sexual orientation of the customers, but based on the intended purpose of the cake. I'm willing to bet that if a straight couple when to the shop and asked for a wedding cake for a gay wedding, the owner would have refused that, too.

  • Tony||

    This is the kind of argument that usually doesn't get past the clever people on the supreme court.

  • Kivlor||

    What happens when the customer refuses to leave when the owner says they don't want to serve them? Hm?

    The same thing that happens when anyone else does this Tony. I'm curious, have you ever worked in a restaurant for a long period of time? If so, surely you've had to remove people who behaved like this. Either physically, or though the cops.

  • Tony||

    But you can't remove someone because they are black. Do you think they should be able to do that? If so, are the cops not equally involved?

  • Kivlor||

    But you can't remove someone because they are black. Do you think they should be able to do that? If so, are the cops not equally involved?

    Yes. This is your right. By nature, if the state stopped violating your rights, you would be able to call the police on a black man, if he refused to leave.

  • Tony||

    States don't exist in nature.

    And we tried it your way. We didn't invent these laws because the white people who ran the federal government nefariously wanted to oppress white southern sandwich shop owners.

  • Kivlor||

    Not really. We haven't ever tried it. We went from Slavery to Jim Crow--where it was ILLEGAL to let blacks into white businesses and schools. That's not at all the same.

    PS "by nature" wasn't a reference to taking things back to some "state of nature" where there is no "nation-state". It means "by the natural properties of these things we're discussing..." and could be similarly stated to read: "it logically follows, if the state stopped violating your rights..."

  • Tony||

    As I've been trying to argue, there is no middle ground. Either the cops are protecting the right of blacks to have lunch, or they're dragging them from the lunch counter. Please don't invoke the argument "There were no actual white racists, it was all the legislators they elected!" because I don't want to get a headache.

  • Brian||

    Tony:

    "Wrong. There is not only coercion on one side. You endorse taxpayer-funded government thugs ejecting people from the premises solely because they are gay."

    Wrong. They're not throwing gays out of heir store. They just don't want to make gay wedding cakes. They'd happily sell the stuff they want to make to gay people and straight people, equally.

    Which makes your straw man violence argument about as applicable as a sneeze. Now, please come back when you have something valuable, you gay twit.

  • Tony||

    It's not a straw man. If the gay people insist on equal treatment and don't leave when told to, they are trespassing under the law. If you think trespassing should be against the law, you theoretically endorse government thugs ejecting people for trespassing. Which we are all OK with, except you want proprietors to be able to do it for any reason, and others think they shouldn't be allowed to do it because the customer is black, or Muslim, or disabled, or gay. I suppose reasonable people can disagree on that, but you can't special plead your way out of the fact that you endorse just as much government coercion as the other side. Government not protecting gay people's right to the same treatment as straight people in a commercial context means it's protecting the owner's right to discriminate and all the implications of that.

  • Brian||

    I assume you want to change the subject because you concede that people should have the right to do business with gay people while not ibeing required to produce the pro-gay goods they demand at whim, and sell the exact same things to gay people as they do straight people?

    Ok then.

    If you want to bitch about how gay people can be trespassers too, just like everyone else, equally, then go ahead, for all the good it'll do you, you whiny petty vindictive little bitch.

  • Tony||

    They explicitly don't want to sell the exact same things to gay people as they do straight people, namely wedding cakes.

    They are not taking any of these arguments to court (because they don't pass the smell test). They are taking the "artistic expression" argument. It's explicitly asking for a first-amendment exception to a law whose constitutionality nobody is disputing.

  • Brian||

    Bullshit.

    They would be happy to sell a straight wedding cake to anyone, even gays, just not a gay wedding cake. And they don't want to sell gay wedding cakes to straight people, either.

    The fact that you can't deal with reality is a big clue for how wrong you are.

  • Tony||

    How the fuck can a cake be gay?

  • Brian||

    I'm sorry, but I haven't had enough coffee today to waste time with fags playing stupid.

    If you have something better, try again.

  • Normandy||

    look you fat old white idiot, the baker will bake for all or he will bake for none. We are tired of humoring you god tarrds

  • Brian||

    I'm sorry, but I don't have time today for fags playing stupid.

    Do you have anything better?

  • sarcasmic||

    Tony cannot comprehend the difference between not serving someone who is gay, and not making a gay wedding cake.

    It literally does not compute.

  • Tony||

    You're damn right it doesn't compute because I don't understand how a cake can have a sexual orientation.

  • Brian||

    Does pretending to be stupid win you a lot of arguments in favor land?

  • Tony||

    So you're suggesting that the Supreme Court ought to carve out a ridiculously narrow exception to the law for people whose religious beliefs are contained to being against homosexual weddings? What about people who are against birthdays for midgets? Where's there exemption?

    If they're not providing the same service to gay people as they are to straight people (selling wedding cakes), they're in violation of the statute. It's plain as day, which is why they're seeking a special exception.

    What is libertarian about the Supreme Court singling out one tiny group of people and giving them an exemption from the law everyone else has to follow simply because they believe something absurd?

  • Brian||

    Uh, no?

    Please take your meds and try again when you start making sense.

  • Tony||

    The owners are not prying into straight couples' lives to make sure they live up to the owners' religious standards. He simply wants to discriminate against gay people, which is against the law.

  • Brian||

    By the same logic, a gay baker who doesn't want to make a cake that says "straight people rule!" is discriminating.

    When you realize that laws that violate the constitution are unconstitutional, let me know.

  • Procyon Rotor||

    What is libertarian about the Supreme Court singling out one tiny group of people and giving them an exemption from the law everyone else has to follow simply because they believe something absurd?

    You're absolutely right (for once). It's not particularly libertarian for the Supreme Court to single out one group of people and say that they have the right to run their business as they choose because religion. It's the same as cases like Little Sisters of the Poor and their issue with paying for insurance that covers contraceptives. Everyone should enjoy these rights, whether their decisions have anything to do with religion or not. The libertarian position is not that these people should have an exemption from the law, but that the law should be struck down.

    Unfortunately, we don't live in a world where the libertarian position is likely to prevail in court. These people have to turn to the First Amendment protections for speech or religion because those are the only rights the Supreme Court feels obligated to recognize. So, whatever. I wish them luck. Better an imperfect victory for liberty than a defeat.

  • John Galt is back||

    These people have to turn to the First Amendment protections for speech or religion because those are the only rights the Supreme Court feels obligated to recognize

    (lol) How would that change if the Court recognized other rights?
    Which other rights are you so confused about?
    Is it perhaps part of the George Soros Grand Conspiracy?????

  • Diane Reynolds (Paul.)||

    It's nice to see you, John and Kivlor in agreement. You all seem to agree that legalizing gay marriage and forced cake baking are inextricably linked!

  • Tony||

    Why would you have a wedding cake without a wedding?

  • sarcasmic||

    In Tony-Land, saying "No, I don't want to make you a wedding cake because it conflicts with my religious views, but I'll be happy to bake you a cake for your birthday" equals "I'm calling the fucking cops you fucking faggot! Say hello my my friend Mr 9mm! Aaauuugghhh! I hate fags!"

  • Tony||

    And you're saying that suing the business for violating state law is the same as shooting up the place.

  • sarcasmic||

    Um, no. But thank you for playing.

  • John Galt is back||

    And you're saying that suing the business for violating state law is the same as shooting up the place?.

    Um, no. But thank you for playing.

    Um, he NAILED your ass!
    Or did you mean a 9mm donut? Button? Faucet washer?

  • DarrenM||

    It sounds to me like the refusal to bake the cake was not based on the sexual orientation of the customers, but on the intended purpose of the cake and how it was to be decorated for that purpose.

  • Tony||

    Its intended purpose being a wedding, the sort of thing he caters to all the time. Oh, but it's a wedding between gay people. How is this anything but discriminating against them for being gay?

  • retiredfire||

    It is how the legal system works.
    A law was passed that conflicts with the Constitutional protections of the First Amendment - in this case, a law that says one can't "discriminate" versus the religious beliefs and the freedom of association of the bakers.
    Maybe other cases have addressed the Constitutional conflict of "antidiscrimination" laws, that have ignored the unconstitutionality of them and allowed the law to be enforced.
    To think such rulings will be allowed to remain, without future challenges, is unrealistic, especially since the unconstitutionality of "antidiscrimination" laws is so blatant.
    If you are going to get worked up over every attempt to bring the laws back into conformity with the Constitution, you need more than the mental health care that should go towards dealing with your homosexuality.

  • Normandy||

    im afraid your ignorant. Belief is guaranteed and protected but not the practice and imposition of said belief. You can believe blacks should be ;laves, but we will not allow that enforcement. You can believe gays are sinners and dont deserve a legal union under the law (thats all marriage is-just a legal union), but we will not allow you to discriminate. Keep your god nonsense in home and in church

  • Normandy||

    no such thing as a gay wedding cake you ignoramus. Its just a wedding cake.

  • John Galt is back||

    Like most (all?) libertarians, I think this sort of coercion is wrong

    It's mostly anti-gubmint libs and the bewildered who support special rights for special groups. Many of them also defend (unwittingly) crony capitalism -- "arguing" that tax cuts for even a small minority of people reduce the taking-by-force of government.

    Sullum states it as a special right for Christians based on the LIMITED principle of non-aggression -- which is why David Nolan expanded the core principles promoted by (mostly) anarchists. THINKING libertarians see no initiation of force in banning marriage equality -- for EITHER homosexuals or mixed-race couples. Right?

    What force was initiated to deny voting rights for women? Even WHITE women! Be specific.

    Try again, Jacob. From a libertarian perspective, please.

  • BestUsedCarSales||

    Is this Hihn?

  • John Galt is back||

    Does Hihn see no aggression in denying marriage and voting equality?
    Do you see any?

  • Azathoth!!||

    Yes.

  • John Galt is back||

    Does Hihn see no aggression in denying marriage and voting equality?
    Do you see any?


    Yes.

    Typical mentality of a Rothbard/Paul puppet.

  • Diane Reynolds (Paul.)||

    If we give women the right to vote, next thing you know, they'll want into the Men Only Club!

  • John Galt is back||

    "Give?"

  • Longtobefree||

    Well, a quick look at history will show that after giving women the vote, the world experienced massive world wars, race riots, drought, famine, economic downturns too numerous to count, and global warming.

    (And they will not want into the men only club; they demand that men become women.)

  • John Galt is back||

    Well, a quick look at history ....

    ... is no substitute for actually studying and understanding history.

    Or ... how did women's suffrage cause Pearl Harbor?

  • Longtobefree||

    Can we demand that the New York Times print factual articles that cite identified reliable sources?
    And sue them if they refuse?

  • John Galt is back||

    1) Would you sue Fox for the same reason?
    2) The fuckup was Sullum's hysteria. Do YOU know what "blunt" means?

  • Normandy||

    The NYT is the most respected paper in the entire world. If they are ever wrong-very few times-they always retract.

  • ||

    Good luck to Mr. Phillips.

    The government shouldn't coerce anyone into doing something they don't want to do. Lame prog 'muh civil rights' notwithstanding.

    How owning a business came to mean it's part of the mysterious 'social contract' and it must follow whatever the political trends are is beyond me.

    Take your business elsewhere if you don't like it. I do it all the time. For example, I live in Quebec and if I know a place of business advocates for separation from Canada, I just don't go. If I know a place says with a sticker 'ici ont parle francais' as a warning you will not be served in English, they just don't get my business. I move on. No need to make a case out of it. THIS is what it means to be in a pluralist society where freedom reigns; where you have to take the good with the bad.

    In my view, that gay couple are less principled and more shit disturbers. They could have gone elsewhere and chose to take a man down and with it his livelihood. Not cool.

  • Tony||

    Customers are not required to shop anywhere. Shops that cater to the public are required to follow antidiscrimination rules just as shops that serve food are required to follow food safety rules.

    You're not defending maximum rights, you're picking the side that gets all the rights. "The government shouldn't coerce anyone into doing something they don't want to do." Unless someone wants to not be kicked out of a shop for being gay. Then bring on the jackboots.

  • ||

    "Shops that cater to the public are required to follow antidiscrimination rules just as shops that serve food are required to follow food safety rules."

    And therein lies the crux of the issue. This, to me, is a business transaction. The government should not interfere. If someone wants to be a bigot, LET THEM. The market will determine if he or she succeeds; and quite frankly I don't think it's an issue to begin with. We shouldn't over react the odd time someone acts inappropriately or against the accepted social norms. You're not gonna get everyone to agree and not should we deny someone to a livelihood over it.

    We all have agency. Use it.

  • Tony||

    Requiring people to obey the law does not violate their First Amendment rights.

    The funny thing about antidiscrimination law is that on the day they become unnecessary, there would be no point to repeal them, because nobody wants to discriminate anyway. To repeal them would be to take an active measure in support of people's right to discriminate. But if people are discriminating, then gay people don't have the same access to commerce as straight people, and black people don't have the same access as white people. The latter were excluded to such an extreme degree in certain parts of the country that we had to invent these laws just so they they could be able to go to the bathroom or get lunch unmolested. Do you suggest that these laws might be prudent if discrimination were rampant enough? Or are minorities just shit out of luck, depending?

  • ||

    I'm always suspicious of the degree government laws claim to 'right' a social problem.

  • ||

    Skeptical is a better word than suspicious.

  • Tony||

    As you should be, which is why you should pay attention to make sure the right people are doing the right things.

  • Bra Ket||

    "Requiring people to obey the law does not violate their First Amendment rights."

    For example laws that prohibit hate speech or flag burning, or that require people pledge allegiance?

    And your circular logic about the laws being "necessary" sheds literally no new light on the topic. The whole point of the article is the disconnect between the principle of liberty and the fact that some may use the liberty to do things we disapprove of.

  • Tony||

    An equally pointless assertion, as many things we disapprove of we do so to such a strong degree that everyone agrees there should be laws against them.

  • Normandy||

    No. What if it was the only gas station for 100 miles? Or the only grocer? Religious kooks must be heeled or they will run roughshod. If you let one belief-made up-no basis in fact-be in law, then all kooky beliefs are allowed. We cannot allow that.

  • Eidde||

    "As Peters sees it, "the First Amendment has become the most powerful weapon of social conservatives" seeking to "roll back laws on same-sex marriage and abortion rights." That gloss is not just misleading but blatantly false. If the ADF wins these cases, its victories will have no effect whatsoever on gay marriage or abortion rights. They will simply carve out some space for peaceful dissent from the social consensus on these issues."

    The point is that to the NYT, compulsory cakes are *part* of same-sex marriage, and compulsory abortion information at prolife clinics is *part* of abortion rights.

    So, yes, from the Times' perspective, of course the First Amendment is a powerful weapon against gay marriage and abortion rights, because robust free expression conflicts with their definition of gay marriage and abortion rights.

    This is what mainstream supporters of gay rights and abortion believe. They have no wish to sell out.

  • Gaear Grimsrud||

    The 1st Amendment was written to protect big time newspapers from guys like Trump. It was never intended to protect the great unwashed, most of whom are not paid subscribers to the NYT, from the State of Colorado.

  • Bobster0||

    If I were gay and wanted a cake and all this happened there is no way in hell I would eat any cake the company was forced to bake for me. No way!

    And why would I want to pay this "anti-gay" company money anyway? Better to go to a "pro-gay" company and give them my cash.

    But maybe I'm missing the gay couples real agenda?

  • Tony||

    The cake vendor is the one who petitioned the supreme court. The agenda is his to create a novel exemption to antidiscrimintion law based on religious belief. The backers of the gay couple urged the supreme court to reject taking the case.

  • Bra Ket||

    Wow so the gay couple was perfectly willing to let their victory in lower court stand?

    That fact that you even refer to "the gay couple" means you must know enough to at least understand that the case exists because they tried to get the bake shop make them a cake then sued it when refused.

  • Tony||

    I know that but as all the courts have agreed so far that's because their rights were violated under the law.

  • Normandy||

    The state is using him actually which is their job because its illegal in CO to refuse service to gays. Of course they wont eat that crappy cake now! Theres a larger point-Christian bigots must be heeled. And they will be.

  • SJMcKeownY||

    With all due respect, I think you're looking at it backwards. Why do we need more legislation? Aren't libertarians for smaller government? The point is, if you're a salesperson, regardless of the product, why should you need special rights to choose who buys your products and who doesn't? If you bake wedding cakes, that's your product. It's not an endorsement of whatever way that product is used. You could deny a request for something beyond what you provide but you can't decide who can purchase that product. I can't see why that's not a conservative viewpoint. If we say a salesperson has a right to special exemptions on who they can deny service to, would it be a stretch to say they must evaluate their customers intentions? Is the same baker responsible for denying cookies to a diabetic customer?

  • Mesoman||

    The choice of freedom of speech is simple: the first two clauses of the 1st Amendment, which guarantee freedom of religious worship and exercise, have been ignored by too many Supreme Court rulings. That's why the RFRA act was passed - to reinforce those rights in the absence of SCOTUS being reasonable.

    Let's face it - modern American culture, driven by leftist media and, sadly, abetted by many Libertarians, is actively hostile to religious freedoms.

    BTW... the 1st Amendment says nothing about "freedom of conscience."

  • Normandy||

    Sorry, but we tried to be reasonable but you and bigots like you refused to serve blacks so we forced you to. We will do the same here. The 14th protects all of us-we must be served equally.

  • Normandy||

    This is absurd. All constitutional scholars agree that the SC will rule against the baker. We simply cannot allow religious nonsense into law. Whats to stop someone from refusing Jews because they killed Christ? Or no blacks because they don't have souls (Curse of Ham)? If you have a business open to the public, you must serve all.

  • John Galt is back||

    If you have a business open to the public, you must serve all.

    Unless you have a sign saying otherwise ... which is a guaranteed right ... that will likely bankrupt your business.
    That's how individualiberty works.

  • JuanQPublic||

    If you have a business open to the public, you must serve all.

    Where is the "right to buy what I want, where I want"? Anything in the Constitution?

    What we do see is a right to practice religion, and right to express oneself. Banning gay marriage is government coercion. Banning a business owner from making decisions based on personal values is also government coercion.

  • John Galt is back||

    Anything in the Constitution?

    How would you know?.

    What we do see is a right to practice religion,

    THINKING people also see freedom FROM religion.

    based on personal values

    What has NOTHING to do with religion.
    So which is it?

    Liberty lovers must defy the demand for a "special exemption" for only the religious, which Gary Johnson (properly) called our for what it is. Special rights are hardly libertarian.

  • JuanQPublic||

    "We have to figure out how to live in a society with pluralistic and diverse views."

    Absolutely. Excellent point, aside from the unconstitutional nature of this government coercion of business owners.

    This is indeed far different than attempts to ban gay marriage, which is also coercive, and unconstitutional.

  • Liberty Lover||

    I guess I wonder why anyone wants someone wants to hire someone who doesn't want to do the job for them, I suspect if you sue and win you will hardly get their best effort.

  • John Galt is back||

    When has that happened?

  • Abe Froman||

    The notion of a "public accommodation" it anti-liberty, anti-freedom.
    Just because you open a business doesn't mean you have to serve anyone and everyone.
    Businesses should be able to refuse service to anyone for any reason or no reason at all.
    To do otherwise is government tyranny.

  • John Galt is back||

    That's like the PHONY libertarian WHINERS (see Rand Paul) who DEMAND some bullshit right to refuse vaccinations ... but REFUSE accept responsibility for any deaths or medical expenses caused by their actions.

    Any business CLAIMS to be open top the public ... unless they post a sing listing all those they refuse,
    Umm, no different than a sign stating that people with no shoes and/or shirts may enter -- which have been around for DECADES. Ever see one?

    Many so-called libertarians claim individual liberty as an excuse to deny personal accountability for the consequences of their own actions,

  • JWC||

    As a gay man, I ideally agree that no private business should be coerced to bake a cake for my wedding (happily, a friend surprised us and made a beautiful and delicious cake for my wedding). But, until the right of that baker to turn me away allows him to also turn away other couples based on aspects of their relationship and/or character that he or his religion may object to, I am going to ask for the same protections that Jews or Muslims or mixed race couples or any of an entire smorgasbord of protected classes find themselves entitled to. You will forgive me and my fellow gays if we decline to be the test case for the sudden application of libertarian values in a society that otherwise eschews them when it comes to questions of public accommodation.

  • John Galt is back||

    Very well stated.
    Except for the confusion at the end. Tolerance goes both ways, and you're just as bigoted regarding "libertarian values." REAL ones. Not the rightwing authoritarians who [prowl these pages.

    First, Gary Johnson said essentially the same thing you did, during his Presidential campaign..
    Second, a closer shot at libertarian values on this issues is posted directly above you,.
    Third, don't confuse Jacob Sullum (the author) with a libertarianism, for the reasons stated here. (Some of them) .

    http://reason.com/blog/2017/11.....nt_7047115

  • JWC||

    You are correct that I should not make the mistake of conflating Sullum's arguments with any kind of true libertarianism, and ideally I would have placed my own reference to "libertarian values" in quotation marks to indicate the intended sarcasm. I recognize that many of the arguments made on this topic, and many others besides, do not reflect much more than a type of libertarianism convenient at the moment (the way that Christianity suddenly becomes convenient and paramount to so very many people when talking about gay issues). What I find interesting from many who have posted on this topic is their willingness to allow a baker to deny me a cake for my wedding or to deny me the rights afforded by a state-recognized marriage license (all couched in "libertarian" arguments), but stop short of then arguing to end public accommodation laws for other groups, groups that presumably do not make them as uncomfortable. Abe Forman is correct: the very idea of public accommodation should be viewed as anti-liberty, however ugly the obverse might potentially be. Ideally, I agree with the argument that the State should not be involved in sanctifying marriage at all, gay or straight. It should be a private legal/religious/social arrangement between individuals. BUT, so long as it is not that, then I expect my relationship to be recognized and protected as surely as a heterosexual union, with all the rights that entails.

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