Lux Lucet

Mary Torres holds up a rolling in in support of cake artist jack Phillips outside the Supreme Court n Washington on Dec. 5.  (Jacquelyn Martin / Associated Press)

In perhaps the biggest story of this past week, the Supreme Court began hearing arguments in the case Masterpiece Cake Shop v. Colorado Civil Rights Commission.

The case involves the Jack Phillips, owner of Masterpiece Cake Shop, who in 2012 refused to make a custom wedding cake for a same sex married couple, Charlie Craig and David Mullins. This set in motion a legal battle that saw Mr. Phillips, a Christian, dragged before the Colorado Civil Rights Commission, which did not look kindly on his appeals to free speech and the free exercise of his faith.

“I can believe anything I want,” said Commissioner Raju Jaram, “but if I’m going to do business here, I’d ought to not discriminate against people.” According to this same article, Phillips was ordered to stop discriminating against gay people, document any customers he refuses to service, provide antidiscrimination training for his staff, and report quarterly for two years.

One commissioner likened Phillips’ actions to those of the Nazis.

The Alliance Defending Freedom, the Christian legal organization representing Jack Phillips, argued this week before the Supreme Court that the baker’s First Amendment rights were violated by the Commission’s ruling. According to her, the Commission also violated Phillip’s religious liberty by attempting to force him, “to sketch, sculpt, and hand-paint cakes that celebrate a view of marriage in violation of his religious convictions.”

While I believe Phillips legal team is well intentioned, and while I wish them well in winning some legal relief for the sake of this Christian man and his family against the vile, militant and powerful LGBT lobby, theirs is, at best, a weak argument. For it implicitly accepts as a legitimate moral principle one of the worst incursions on private property and personal liberty that has ever occurred in the nation: the prohibition against discrimination in places of public accommodation found in Title II of the 1964 Civil Rights Act.

Up until that time, a man’s business was, quite literally, his business. It was no different that of his home. Just as a home owner could discriminate concerning who came into his living room, so too could a business owner discriminate with respect to his customers, deciding whom he would and would not serve.

What Title II did was draw a previously unknown distinction between one’s private residence and what the Act called, “place[s] of public accommodation.” This included establishments such as inns and restaurants. Further, Title II explicitly made it illegal for business owners to discriminate against customers, “on the ground of race, color, religion, or national origin. ”

The case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, is not about free speech. It is not even principally about the free exercise of religion. Fundamentally, it is about property rights.

The only article I’ve come across so far that makes this point is an incisive post by Jacob Hornberger titled Wedding Cakes Have Nothing To Do With Free Speech.

In his post, Hornberger correctly notes that the confused opinions on Phillip’s case by otherwise bright legal scholars is what happens, “when the courts compromise (i.e., abandon) the principles of freedom.”

Writes Hornberger, “The fact is that the wedding cake controversy has nothing to do with free speech. Instead, the issue is all about private property and the right to discriminate.”

Exactly.

Hornberger continues,

Let’s start with a simple example: the owner of a home. I think everyone would agree that he has the right to decide who comes into his home. He’s the owner, after all. That’s part of what private ownership is all about – the right to exclude others from coming onto his property.

Suppose the homeowner throws a party in which he excludes blacks, Jews, immigrants, and poor people. All of his 100 invited guests are rich white Americans.

Are there any First Amendment issues here? Would those lawyers in the wedding-cake controversy be vexed over whether the homeowner has the right to discriminate? Would they say that the issue turns on how “creative the party is?

Of course not. Free speech and the First Amendment wouldn’t even enter the picture. under principles of private property and liberty, the homeowner has the right to discriminate. If the state were to force him to invite blacks, Jews, immigrants, and poor people to his party, there is no way that he could be considered a free person. Freedom necessarily entails the right of the homeowner to discriminate on any grounds he want when it comes to who enters onto his property.

The same principle applies to a person’s business. It’s his business. It’s his private property. He has just as much right to discriminate here as he does with his home.

Thus, by applying that principle, the wedding-cake controversy disintegrates. Bakers have the right to bake a cake for whomever they want and for whatever reason they want. It might well be that they hate blacks, Jews, immigrants, and poor people. Motive doesn’t matter. What matters is that under principles of liberty and private property, private business owners have as much right to discriminate as private homeowners…

The problem, however, is that long ago the U.S. Supreme Court held that when people open their businesses to the public, everything changes. The Court held that when business owners do that, they subject themselves to governmental control, including state anti-discrimination laws.

This is outstanding commentary, and I strongly recommend the article to anyone who wants a better understanding of the real issue at stake in the case currently before the Supreme Court.

But as good as Hornberg’s article is, there is room for improvement.

Hornberger rests his case on an ad hominem argument in which he appeals to the widely accepted belief that it’s wrong for the government to dictate the guest list the for our upcoming Christmas party. He then challenges people to apply this same concept, the notion that it’s wrong for the government to intrude on their decisions concerning houseguests, to privately owned businesses.

But what if someone doesn’t grant that it’s wrong for the government to tell you whom you can have over for dinner. What if they think it really is the job of government to review your wedding invitations to ensure that the guest list includes a proportional representation of all the various ethnic and religious groups?

I know, it may sound absurd that someone would argue this way. But considering the astounding absurdities that are daily put forth in the name of social justice, there likely are some individuals who would find this appealing. Maybe they’d run Hornberger’s argument in reverse, saying, “If it’s right for the government to dictate the client list of a private business, in the name of logic and of social justice, we need to expand the job of the civil rights commission to include the power to review the invitations to your next Sunday School party.”

In short, Hornberger’s article lacks a “Thus saith the Lord.” He does not appeal to Scripture to support his argument, and, therefore, leaves himself vulnerable to the sort of counter argument I’ve suggested. There likely are other, and perhaps better, counter arguments.

This weakness in Hornberger’s argument then raises the question: Can we find Scriptural support for his assertion that private property is private property, regardless of whether it is a home or a business? The answer is, yes.

The Bible everywhere supports private property, personal liberty, and limited government and opposes collectivism, authoritarianism and big government.

The most obviously applicable passage to the question before us is found in Matthew Chapter 20. In his parable of the workers in the vineyard, Jesus clearly defends the property rights of the vineyard owner over against the claims of the disgruntled workers. When they complain to him, the vineyard owner replies, “Is it not lawful for me to do what I wish with my own things?”

Now granted, the parable of the workers in the vineyard is an example of an employee-employer relationship, not a business owner-customer relationship. But the principle that the it is lawful for the business owner to do what he wishes with his own things applies just as much in the case of customer relations as it does in employee relations. In both circumstances it is lawful for the owner of the business to do as he wishes with his own things.

A second weakness in Hornberger’s argument is that it ignores the moral depravity of homosexuality. Although I was unable to find an explicit statement by Hornberger concerning his view of homosexuality, as a Libertarian he is likely not that concerned with it.

Central to Libertarian thought is an ethical concept called the non-aggression principle (NAP). One libertarian writer describes is thus, “One versions of the NAP states that while it is legitimate to use physical violence in defense of one’s rights, initiating violence against another person is wrong and can be met with proportional violence in self-defense…In this formulation, aggression means ‘initiating physical violence.’ ”

For libertarians, as long as homosexuals are not physically aggressing against others, then they should be free to live their lives and practice their lifestyle the same as all others.

In a post on the Future of Freedom Foundation’s (FFF) website – Jacob Hornberger is the founder and president of the FFF, so I take the comments in this post as representative his views – Richard M. Ebeling looked favorably on laws supporting same-sex marriage, seeing them as representing, “advancement in the arena of personal and social freedom in terms of a proper extension of equal and impartial treatment before the law.”

But the Bible explicitly defines marriage as the union of one man and one woman and in multiple places condemns homosexuality as an abomination. Homosexuality was illegal under the law of Moses, punishable by death. Further, Scripture requires that civil magistrates “praise the good” which I take to mean that they have the responsibility to pass and enforce laws in accord with the law of God.

Homosexuality is not one of those things that the civil magistrate can turn a blind eye to. Governors, therefore, not only are within their right to pass and enforce laws against Sodomy, it is sinful for them not to do so.

Hornberger’s analysis is entirely lacking in any commentary on the subject of gay marriage. But if governors were doing their God appointed job of suppressing homosexuality, there never would have been an occasion for a gay couple to sue a Christian baker over his refusal to bake a cake, even if Title II of the 1964 Civil Rights Act were fully in effect.

In truth, it is doubtful that the legislators who wrote the Civil Rights Act ever dreamed that their prohibition against discrimination in places of public accommodation ever would have resulted in a Christian baker being dragged before a civil magistrate, berated for his discriminatory business practices, and subjected to civil penalties. But that is, in fact, what has happened as a result of the blows of Civil Rights Act – it’s worth noting that not all provisions in the Civil Rights Act are objectionable – which did so much to destroy property rights and personal liberty in the United States and the rise of the homosexual movement and the legal acceptance of same-sex marriage.

So there are three big takeaways from this post. First, the issue at stake in Masterpiece Cake Shop v. the Colorado Civil Rights Commission is not one of free speech or freedom of religion, it is one of property rights.  The butcher, the baker, and the candlestick maker all have the right to serve or not to serve customers as they see fit.  Second, the Bible, and the Bible alone, provides for a competent defense of a free society. Libertarianism, even in the hands of a skilled writer such as Jacob Hornberger, does not.  Third, the homosexual movement, far from being a force for good, is a serious threat to personal liberty and private property.  It ought to be opposed by anyone, Christian or not, who cherishes freedom.