The US Department of Justice (DOJ) has filed an amicus brief on behalf of Jack Phillips in an upcoming US Supreme Court case, Masterpiece Cakeshop v. Colorado. Media reports describe the brief, not unsurprisingly, as further proof that the Trump administration is hostile toward the LGBT community. In reality, however, the DOJ’s intervention is not only good for liberty and free markets, but also very much in the best interests of the LGBT community.
According to the LA Times the story begins five years ago, when Charlie Craig and David Mullins asked Masterpiece Cakeshop about a cake for their wedding reception. Phillips, the owner of Masterpiece Cakeshop, declined. He said that making cakes for same-sex couples violated his religious principles.
Craig and Mullins filed a complaint with the Colorado Civil Rights Commission. Colorado, like some twenty other states, requires businesses serving the public to offer equal service to all customers, regardless of their sexual orientation. An administrative judge, a state commission, and the Colorado Appellate Court all decided that Phillips had violated Colorado law. As a result, Phillips no longer offers customised wedding cakes.
With the backing of the Alliance Defending Freedom Phillips has appealed to the US Supreme Court, asking to be exempted from the Colorado law under the First Amendment’s protection of free speech. The DOJ’s Acting Solicitor General Jeffrey B. Wall has filed an amicus brief on behalf of Phillips, arguing that Phillips’s rights to free speech and to the free exercise of religion should take precedence over Colorado’s law prohibiting discrimination on the grounds of sexual orientation.
The exemption that Wall calls for in the brief is not all-encomposing. Again according to the LA Times, Walls says that it should apply to only those businesses whose “product or service [is] inherently communicative.” In other words, it would not apply to most businesses. “A commercial banquet hall may not refuse to rent its facilities, nor may a car service refuse to provide limousines,” he says. He also says that the exemption should not include cases of racial discrimination, a distinction that is in line with previous Supreme Court decisions.
The scope of the claimed exemption is, for supporters of free markets, too narrow. For markets to be truly free, transactions must be voluntary on both sides. If a business is forced to provide a service against its principles, regardless of however abhorrent we may find those principles, it is not a voluntary transaction. The transaction is lop-sided.
The customer may, of course, back out of the transaction for any reason. It may be that the price is too high. Or the customer may hear that the baker’s cakes turn out to be not up to the quality promised. Perhaps the customer finds out that the bakery’s health department rating is less than perfect. Or, more to the point, it may be that the customer hears something about the baker that convinces him not to give the baker his money. Whatever the reason, the point is that there is no restriction, apart from contracts, that prevents the customer declining to continue with the trade.
The businessman, on the other hand, is compelled by law to trade with each and every potential customer who comes long. And this point is vitally important: the baker’s cakes don’t magically appear from nowhere. They are not baked by friendly, helpful elves who live in trees. Everything a baker sells is the result of either his own labour or that of his employees.
What the Colorado law amounts to, in the end, is that the baker has no control over his labour. He is compelled by law to provide his labour for anyone who demands it, regardless of his conscience, his principles, or his beliefs. In what way is this just?
If the law requiring a business to deal equally with all customers were removed it would return trade to a level playing field. Both parties would have to be happy with the terms of the transaction for it to proceed. It would, in short, be truly free trade.
As for the interests of the LGBT community, it would seem obvious that forbidding a business from discriminating against some customers simply because of their sexuality is a good thing. And no doubt that is exactly what was intended by the legislators who enacted the anti-discrimination laws.
Those legislators, unfortunately, got it exactly wrong. The law, as it stands, denies gays and lesbians the market’s single most important product: information.
What we call the market is really just the sum of all the individual transactions we all make every day. If you stopped for a coffee on your way to work this morning then you were part of the market. When you go for the weekly shop or fill up with petrol or sign up for Amazon Prime then you are part of the market. All those individual transactions we make every day, when they’re added up, make up the market. And that market gives us information. And information is power. Mind, it’s not just the transactions that do take place; it’s also those that don’t. When a business owner refuses to serve a customer because he’s gay or black or a policeman or in the military, that is information about the business owner. It tells us that the business owner doesn’t like gays or blacks or a policemen or servicemen.
It’s not at all unreasonable for a customer not to want to hand over his money to a businessman who despises him. In fact, it’s quite understandable. That’s why boycotts have been a tool for fighting prejudice since at least 1880, if not longer. Boycotts hit a business owner where it hurts the most: in the bottom line.
But if the bigoted businessman is forced to trade with any and all customers then the market loses that crucial information about who the businessman is and isn’t willing to trade with. The information about the bigoted businessman is lost. And as a result it is impossible to know who deserves to be boycotted and who doesn’t. Even if the the discriminated-against customer refuses ever to trade with a bigoted shopkeeper, he will likely deal with one simply because he has no way of knowing who the bigots are. How can this possibly be in the LGBT community’s best interests?
The DOJ’s brief is a good start, but it doesn’t go nearly far enough.