Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case currently pending at the Supreme Court, involves Jack Phillips, a pastry chef who declined to make a wedding cake for a same-sex couple on the grounds of religious conscience. Jack Phillips, a Christian, felt that it would be against his faith to endorse the wedding, but offered to sell them other pastries in the store or to bake another cake for a different occasion.
While the couple ultimately found another bakery to meet their needs, they filed a complaint with the Colorado Civil Rights Commission. This complicated case now awaits a decision at the Supreme Court and involves a variety of issues including public accommodation laws, artistic expression, religious rights, business rights, government coercion, and fair and equal treatment before the law.
First, public accommodation laws came from English common law which defined certain industries as public, so that no one could be excluded. This was particularly useful for travelers who needed a place to stay, a place to eat, or a ferry to ride.
In the early 1960’s, African-Americans in this country still lived within racial stratification. This included exclusion from lodging, transportation, restaurants, bathrooms and water fountains. The public accommodation law, known as the 1964 Civil Rights Act, gave fair and equal access to these services for African-Americans. This law addressed a systemic problem of racism within the United States and gave equal access to a group previously excluded.
Those prosecuting Jack Phillips claim that his refusing to bake a cake for a same-sex wedding is the same as denying the service based on a person’s race. In other words, in terms of public accommodation law, a person’s sexual orientation is equivalent to race.
But is it?
First, Jack did not refuse to serve the same-sex couple. He offered them other items in the store and offered to bake them a cake for another occasion. He declined a specific event. He didn’t decline to serve the people.
Second, comparing the current treatment of same-sex couples to that of pre-Civil Rights Act African-Americans is not a fair comparison. Same-sex couples can buy a train, plane or bus ticket. They can buy a house, stay at a hotel, use public restrooms, and drink from public water fountains. They simply cannot buy all wedding services from all wedding service providers. This problem was quickly solved when they found another bakery to suit their needs. This is not a systemic barring from society which necessitates the application of the public accommodation law.
This case attempts to misapply public accommodation laws to grant government recognition of a specialized interest group. It must be remembered that the original intent of the Civil Rights Act public accommodation laws addressed the specific issue of race. If we expand public accommodation laws to accommodate every grievance group, when does it stop? Do people with bad credit have a “right” to a home loan because to do otherwise discriminates against them?
Interestingly, the arguments of the case center around the discrimination against the same-sex couple, but fail to recognize the discrimination against Christians, Christian beliefs and conscience rights. Jack Phillips had a religious objection to baking a wedding cake for the same-sex couple. Yet, those prosecuting him argue that when a person enters public sales, they lose their “right” to conscience. This argument states that there are “limits” to conscience, which is a fancy way of saying that there are limits to religious freedom in the public square. Yet, when the government “limits” conscience, it essentially controls it, which stands as the very opposite of religious freedom.
To provide an analogy, what if a neo-Nazi requested a swastika cake from a Kosher bakery. Would the Jewish baker have the right to say, “No?” Or does the neo-Nazi have a “right” to demand a service from service provider who philosophically and religiously objects to a request?
Such arguments compromise artistic freedom as well as religious freedom by compelling artists, singers, florists, videographers and others to compromise their deeply held religious beliefs. As Kristen Waggoner, senior counsel at Alliance Defending Freedom, who represents Jack Phillips, stated, “This court [Supreme Court] has never, never compelled artistic expression or ideological speech and if it does so now, it will lead to a less pluralistic, less diverse, and less tolerant society.”
Additionally, arguments of government coercion would also compel a lesbian graphic designer to design wedding invitations for a heterosexual couple even if she objects. In any other business, the owner has the right to say no. “No, I can’t take on that project because my mother is dying and I’m her primary caretaker.” “No, I can’t paint that painting because I’m pregnant and the fumes would harm the baby.” “No, I’m retired, and I don’t offer that service anymore.” But when it is “No, I religiously or philosophically disagree” why does that change the rights of the business owner to decline?
When the government forces business owners to perform a certain function, we must also ask ourselves, “Who really owns the business?” Do businesses have a right to make their own decisions, or are they merely private-sector arms of the government?
Ultimately, we must make laws that protect fair and equal treatment of all people, not laws which grant rights to some groups to the exclusion of others. Laws which coerce people to act against their religious conscience, which limit artistic expression and strip the business owner of his or her ability to decline, limits freedom, rather than expanding it.
Such laws grant rights to those who demand a service while simultaneously stripping the rights of those who have a religious objection to those demands. Such exclusionary policy stands as a loss for everyone’s freedom. It transforms people of conscience into an excluded minority whose appeal to First Amendment religious rights will be systematically ignored.
Rights and tolerance must be a balance. While we treat lifestyle choices with tolerance and sensitivity, we must also treat a person’s religious beliefs with that same tolerance and sensitivity. As Justice Kennedy stated in regard to the case, “Tolerance is essential in a free society. And tolerance is most meaningful when it is mutual.”
Postscript: The Supreme Court issued a 7-2 decision in favor of Masterpiece Cakeshop on June 4, 2018.
Originally published on Patriot Post, March 8, 2018.
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The modern American university has increasingly become a place of walk-outs, demonstrations and protests. Students appear to spend more time waving signs and yelling their opinions across the quad than actually studying in the library. It seems that education has been replaced with activism. Because it has.
A report by the National Association of Scholars (NAS) reveals the infiltration of New Civics programs which seeks to replace traditional civics programs with “service learning.” The report notes, “Instead of teaching college students the foundations of law, liberty and self-government, colleges teach students how to organize protests, occupy buildings and stage demonstrations.”
New Civics has become the means by which the New Left has repurposed higher education for progressive activism. Part of the goals of “fundamental transformation” include advocating against the fossil fuel industry, redistributing wealth, compromising the free market, expanding the welfare state, intensifying identity politics, elevating global “norms” over American law, minimizing our common history and ideals to a narrative of racism, misogyny, and exploitative colonialism and to channel university funding to progressive causes and “allied” programs.
While previously civics meant teaching students about democracy, representative government, separation of powers and landmark Supreme Court cases, New Civics emphasizes participation in leftist causes. This they call, “civic engagement.” While traditional civics prepared students to understand and steward a free society, New Civics teaches students how to deconstruct it. Rather than learning the foundations of the United States and the fundamentals of the Constitution, students learn to fight the government and to solve grievances through protest rather than debate.
This trend of problem-solving through protest rather than debate has bled into popular culture as evidenced in the myriad of marches and protests our country has experienced in the past year: the March for Women, the March for Science, the March for Climate, Black Lives Matter, or marches for #notmypresident, illegal immigration, gun control, fossil fuel divestment, Antifa, abortion, white supremacists, neo-Nazis, LGBTQ rights, and so on.
While differing views within a free society are inevitable, the solution to reconciling those differences consists in an honest debate about the merits and faults of those views, not in yelling at each other. This concept would be taught in a traditional civics class, which would discuss James Madison’s Federalist 10 on factions. A student would learn factions are a natural result of differing human interests and opinions and only two ways exist to stop it. Either remove the causes or control the effects. Removing the cause means removing differing opinions (i.e. destroying liberty through mandated group think and ideological conformity) or allow it, but manage its effects through representative government as described in the Constitution.
Traditional civics would teach students how to vote, how to write their congressman, how to run for office, and how to participate in our republic. New Civics teaches students that rallies, protests and activism are the only way to change things. It teaches by example that destroying due process, the rule of law and the necessary confinements of government are the only way to change it. This is what is meant by the term, “fundamental transformation.”
Yet where did service learning originate? According to the NAS report, the service-learning pioneers composed of teachers, administrators and community organizers all “traced their commitment to service learning to their far-left political commitments.” William Ramsey began the first “service learning” program in 1965 at the Tennessee-based Oak Ridge Institute of Nuclear Studies. Robert Sigmon, whose motivations were to use education as “a tool to promote revolutionary change” which, of course meant leftist ideology, joined Ramsey in 1966.
Service learning combined the teaching theories of socialists John Dewey and Paul Freire who emphasized learning through doing. The service learning model also incorporated the Open-Door Schooling movement of Mao’s Communist China. Under Mao, schools sent children, as part of their education, into factories and fields to learn socialism from workers and peasants. In addition, the ideas of Saul Alinsky, most notably community organizing (or organizing against the government) entered higher education through the service learning method.
This concept seems like a noble cause: to transform learning from simply memorizing data into a hands-on experience. Most people remember the “volcano” experiment of vinegar and baking soda for elementary science classes because they experienced the dramatic eruption. Yet a remarkable difference exists between hands-on experiments in science class and hands-on activism masquerading as “education.”
The service-learning method not only compromises teaching, and the regular discipline of a university education, but it also compromises volunteerism, which should be voluntary, not required. When volunteering becomes compulsory, it ceases to be “volunteer.” Additionally, the joy in volunteerism is found in giving without thought of receiving. Yet NAS notes that “The New Civics advocates want to redefine the entire American civic spirit to serve the progressive political agenda.”
NAS notes that “New Civics advocates want to make ‘civic engagement’ part of every class, every tenure decision, and every extracurricular activity.” It thus has begun to change the authority structure from the faculty and professors to the administrators and offices of civic engagement, student affairs, diversity and sustainability.
New Civics sounds non-partisan and inclusive because it encourages students to “engage in the community.” Yet, the “community” narrowly means the community of progressive organizations. Using semantics and language to neutralize their objectives, service-learning progressive activists don’t call it progressive activism training, but rather, civic engagement, community-focused projects, social justice activism, global civics, deliberative democracy, intercultural learning and a slough of other neutral terms designed to deflect real meaning.
While we face threats of terrorism and nuclear war, the often-overlooked threat is the university which not only incubates leftist ideas but teaches students to actively engage against freedom, ironically calling it “civic engagement.” By replacing history with propagandistic “perspectives” and exchanging the teaching of the U.S. legal tradition with progressive deconstructionism, the New Civics movement has compromised the education of students, the merits of true volunteerism, and the stewardship of freedom in this country.
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Originally published on Patriot Post, March 1, 2018