In a Facebook post, Libertarian Presidential candidate Gary Johnson explains why the State should be allowed to force bakers and florists to participate in gay weddings even if such participation goes against their religious beliefs.
In a nationally-televised debate among three of the Libertarian candidates for President (A debate that should, by the way, have been more inclusive of all the candidates.), a highly unlikely hypothetical question was raised about whether a Jewish baker has the right to refuse to serve a Nazi sympathizer asking for a “Nazi cake”. I responded to that question in the legal context of whether a public business has the right to refuse to serve a member of the public, as distasteful as it might be.
The simple answer to that question is, whether all like it or not, U.S. law has recognized the principle of public accommodation for more than 100 years: The principle that, when a business opens its doors to the public, that business enters into an implied contract to serve ALL of the public. Further, when that business voluntarily opens its doors, the owners voluntarily agree to adhere to applicable laws and regulations — whether they like those laws or not.
To be clear, anti-discrimination laws do not, and cannot, abridge fundamental First Amendment rights. I know of no one who reasonably disagrees. In the highly unlikely event that a Nazi would demand that a Jewish baker decorate a cake with a Nazi symbol, the courts, common sense, and common decency — not to mention the First Amendment — all combine to protect that baker from having to do so. It’s not an issue, except when distorted for purposes of gotcha politics.
Does a public bakery have to sell a cake to a Nazi? Probably so. Does that bakery have to draw a swastika on it? Absolutely not. And that’s the way it should be.
Of course, we all know that this conversation is really “code” for the current, and far more real, conversation about society’s treatment of LGBT individuals. I have even heard some talk of a “right to discriminate”. And of course, we have states and municipalities today trying to create a real right to discriminate against the LGBT community on religious grounds — the same kinds of “religious” grounds that were used to defend racial segregation, forbid interracial marriages and, yes, defend discrimination against Jews by businesses. That is not a slope Libertarians want to go down.
Once again, my belief that discrimination on the basis of religion should not be allowed has been distorted by some to suggest that a legitimate church or its clergy should be “forced” to perform a same-sex marriage. That is absurd. The various ballot initiatives I supported across the country to repeal bans on same-sex marriage all had one provision in common: A specific provision making clear that no religious organization, priest or pastor could be required to perform any rite contrary to that organization’s or individual’s faith. That protection was supported almost universally by the LGBT community — even though most legal scholars agreed that such a protection already exists in the Constitution. We just wanted to leave no doubt.
I was the first major candidate in the 2012 presidential campaign to call for full marriage equality, and Libertarians have long stood for equal treatment under the law for all Americans. As your candidate for President, I will not tarnish that record.
He’s wrong, of course. Public accommodation laws arose from the necessity to protect travelers from harm way back when being denied a room in an inn or a meal at a tavern could be a matter of life-or-death. Getting one’s feelings hurt because someone doesn’t cheer one’s lifestyle does not rise to the level of harm that warrants state involvement. His assertion that the law trumps individual conscience is an odd one for someone who claims to be a libertarian; the Jim Crow laws forced merchants to discriminate even if they didn’t want to, because “It’s the law.”
If a bakery (or a florist, or a photographer) doesn’t want to participate in your wedding, there is a simple solution that doesn’t involve the State, go to another baker. Someone else will be gladly accept the business.
Forcing those who religiously object to gay marriage to participate in gay marriage ceremonies is an act of forced political speech in a way that just selling a generic cake to a gay customer is not. It’s disheartening that Mr. Johnson cannot distinguish the difference. However, since his opinion on the matter is no different than Hillary’s or Trump’s, it isn’t a deal-breaker.