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Freedom to Exclude Versus Enforced “Tolerance”

Ilya Shapiro

The state of civil society in America is conflicted. On the one
hand, we have a plethora of affinity groups to suit anyone’s fancy.
Your social choices are no longer limited to the men’s club or
bowling league, and digital-media tools can make anyone a YouTube
or Twitter all-star. On the other hand, pressures to conform to
ever-shifting political correctness can threaten the educational
and employment prospects — and, increasingly, physical safety
— of those who hold minority views.

Religious liberty, as exercised through free association beyond
the bare freedom to worship, is under threat from government
mandates, weaponized antidiscrimination laws, and other
illiberalisms of the New Left. For example, US college campuses
have become a hotbed of anti-Semitism even as such incidents
decline worldwide (presumably because Jews are disfavored in the
latest intersectional hierarchy of privilege).

The Supreme Court, for its part, has taken a middle stance,
making the government relent in cases like Burwell v. Hobby
Lobby
(2014) and Zubik v. Burwell (2016) but not
allowing student groups to restrict membership to actual believers
in Christian Legal Society v. Martinez (2011). This fall,
the Court will hear Masterpiece Cakeshop v. Colorado Civil
Rights Commission
,one of the public-accommodations cases that
ask whether businesses can be punished for declining to service
same-sex weddings.

So what about those state laws? Here we see infringements of
individual freedom in the spillover from the gay-marriage debates,
with people being fined for not working same-sex weddings: the
Washington florist, the Oregon baker, the New Mexico photographer,
and many others, all of whom serve gay clients in non-marital
circumstances. Most recently, a Michigan farmer was banned from the
East Lansing farmer’s market for posting on Facebook that he would
decline to host gay weddings on his outside-city-limits farm.

To me, there’s a clear difference between arguing that the
government must treat everyone equally — the legal dispute
regarding state issuers of marriage licenses — and forcing
private individuals and businesses to endorse practices and
participate in ceremonies with which they disagree.

The most basic principle
of a free society is that government cannot force people to do
things that violate their consciences.

Notwithstanding New Mexico’s state Religious Freedom Restoration
Act, Elane Photography lost its case. Despite gay-rights activists’
comparing their struggle to the Civil Rights movement, New Mexico
isn’t the Jim Crow South, where state-enforced segregation left
black travelers nowhere to eat or stay. A YellowPages.com search
yields more than 100 photographers in the Albuquerque area, most of
whom would surely be happy to take anyone’s money.

That’s why it’s heartening that a Kentucky appeals court ruled
in favor of local print shop Hands On Designs, which had declined
to print t-shirts promoting the Lexington Pride Festival because
its owners disapproved of the shirts’ message. That ruling was
narrow, however, holding that the public-accommodations ordinance
didn’t protect political views. (Many do hold ideology to be a
protected class, as in Seattle and the District of Columbia.) The
court missed the opportunity to make clear — as Cato
urged in our amicus brief — that laws violate the First
Amendment when they force people to publish words with which they
disagree.

Indeed, many of these cases implicate freedom of speech even
before associational considerations. Take, for instance, a
freelance writer who refuses to write a press release for a
religious or political group with which he disagrees. Under several
state courts’ theories, such a refusal would be illegal. Yet a
writer must have the First Amendment right to choose which speech
he creates, notwithstanding state law to the contrary. Likewise,
with photographers and florists who create visual rather than
verbal expression. The Court has said repeatedly that the First
Amendment protects an “individual freedom of mind,” which the
government violates whenever it tells a person that she must or
must not speak.

Upholding individual freedom and choice here would inflict
little harm on those who feel offended and hurt. A photographer who
views same-sex weddings as immoral would be of little use to the
people getting married; there’s too much risk that the photographs
will, even inadvertently, reflect that disapproval. Those engaging
in such a ceremony — or, say, entering an interfaith
marriage, or remarrying after a divorce — would actually
benefit from knowing that a prospective vendor looks down on their
union, so they could hire someone more enthusiastic.

Many of our culture wars are a direct result of government’s
forcing one-size-fits-all policy solutions on a diverse citizenry.
All these issues will continue to arise if those in power demand
that people adopt certain beliefs or cease to engage in the public
sphere.

The outcry over cases involving the freedom of speech and
association shows a more insidious process whereby the government
foments social conflict as it expands its control into areas of
life that we used to consider public yet not governmental. Indeed,
it is government’s relationship to public life that’s changing
— in places that are beyond the intimacies of the home but
still far removed from the state, such as churches, charities,
social clubs, small businesses, and even “public” corporations that
are nevertheless part of the private sector. Through an
ever-growing list of mandates, rules, and “rights,” the government
is regulating away our Tocquevillian “little platoons.” That civil
society, so important to America’s character, is being smothered by
an ever-growing state that, in the name of equality, tries to
standardize life from cradle to grave.

The most basic principle of a free society is that government
cannot force people to do things that violate their consciences.
Some may argue that in public-accommodations cases, there is a
conflict between the “freedom to discriminate” and basic civic
equality, so the government has to step in as referee. But that’s a
false choice, as President Obama liked to say. Without putting
wedding vendors out of business, gay couples are still free to get
married and to choose among many vendors when they do.

The problem that these clashes expose isn’t that the rights of
privileged businesses trump those of marginalized customers. It’s
that all too often governments don’t recognize everyone’s right to
live his life as he wishes.

Ilya Shapiro is a senior fellow in constitutional studies and editor-in-chief of the Cato Supreme Court Review.