Private Property, Public Accommodation, And Religious Freedom

Greensboro-Woolworth-lunch-counterThere are such things as unintended consequences and Americans are impatient with injustice. There were real, gross injustices being committed against an entire class of Americans that led to the 1964 Civil Rights Act that forbids restricting access to “public accommodations” on the basis of race, creed etc. I’m prompted to these comments because of this post by Sterling Beard, which reports that the New Mexico Supreme Court has ruled that a wedding photographer violated the New Mexico Human Rights Act by refusing to photograph a homosexual wedding.

According to the court, the owners of the photography business are free (for now) to say and think as they will but they are not free to decide not to photograph a homosexual wedding. In other words, because they offer a service to the public, their private property is no longer theirs. If a homosexual couple demands that they photograph a wedding, the photograph must serve them regardless of their religious convictions or wishes.

This is a remarkable turn of events. Homosexual marriage is still against the law in most states. Homosexuality is still regarded as a broken condition and homosexual acts are regarded as a violation of the natural and moral law of God by millions of Americans and have been so regarded by virtually all of Western civilization in both the classical and Christian periods for millennia. Indeed, the President of the United States himself was opposed to homosexual marriage until just before the 2012 election. The question of the origins of homosexuality is still quite undecided but despite that uncertainty, according to the New Mexico Supreme Court, one has an inalienable right to life, liberty, and homosexual marriage. That’s remarkable. Just as in Roe v. Wade, a court has leapfrogged history, law, and science to achieve a desired social outcome and just as in Roe v Wade the court may find itself looking just a silly.

As I argued in 2009 the 1964 Civil Rights Act will have unintended consequences:

A related but politically incorrect matter is the question of whether one has a natural right to restrict his business from those who wish to use the property/facilities to commit crimes against nature and society. The problem is not so much with the hotel owner who refuses service as it is public policies that no longer recognize the nature of private property. As much as one favors the Civil Rights Act of 1964, one of the unintended consequences was the loss of civil liberty for those who conduct business. Racism is stupid, bad business, and immoral but should it have been made a criminal offense? Or, should public policy, in pursuing the goal of eliminating racism, tie the hands of a business owner who provides some public accommodation? Cannot a business owner assert a prior right to refuse to provide service to anyone?

Nevertheless, it is one thing for the magistrate to require a business to serve all races. It is another thing to require a business owner to serve those who are intent upon committing a crime against nature. Simply because one conducts a commercial enterprise, it is not obvious that anyone and everyone has a right to enter and to do whatever he will.

If homosexuality is no longer to be regarded, as it was as late as the 1950s and 60s (or are you willing to call Dr King a bigot?), as a psychological defect and is now regarded as a natural, unavoidable condition like race and if a “public accommodation” is any operation that offers goods or services to the public then the logic is inexorable.

The only way out of this logical cul-de-sac is to reconsider our definitions. A public accommodation cannot be any business (or other operation) that provides services to the public. On such a definition no business is really private property. If civil freedom is the relative absence of restraint, then when a business owner cannot decide whom she will serve then she is no longer free.

A public accommodation should be defined as a thing that is publicly financed through tax dollars. Homosexuals pay taxes and have a natural right to travel public roads and use public bridges but private property, by definition, cannot be a public accommodation. Further, it is far from clear that homosexual acts are equivalent to race and sex.

If a business owner is no longer free to decide whom she will serve, if she must violate her conscience by photographing a homosexual wedding or baking cakes for a homosexual wedding, then all convictions have been privatized by judicial fiat. By privatized I mean that, as the court said, she’s allowed (for now) to think and say as she will but she’s not free to act according to her convictions. In that case citizens are no longer free. The eschatology of absolute and immediate equality of outcomes and access has wiped out basic civil freedoms.

Decisions such as this one by the NM Supreme Court should also cause us to reconsider how we decide to remedy social ills. Should we do it by legislation (i.e., by coercion) or by persuasion? When we give up on persuasion and resort to force to achieve desired outcomes, we lose a good bit of freedom. Mine eyes may have seen the coming of the Lord but those eyes probably didn’t imagine that the vintage would be served at a homosexual wedding. Unintended consequences.

On the premises adopted by the NM Supreme Court (and others) civil freedom is in grave jeopardy. It is only a matter of time before this logic will touch ministers and the church. One may argue that churches and ministers will be exempt from such rulings but how long will such exemptions stand? After all if homosexual marriage is a human right then how can churches and ministers deny them? Let’s say that the Phelps family decides to hire a homosexual to photograph a wedding at Westboro Baptist Church and the photographer, repulsed by the ideas, rhetoric, or behavior of the WBC declines?  I say that both photographers are naturally free to say no.


Fred Lucas has an update.

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  1. Quote: “…a crime against nature… The only way out of this logical cul-de-sac is to reconsider our definitions. A public accommodation… Decisions such as this one by the NM Supreme Court should also cause us to reconsider how we decide to remedy social ills. Should we do it by legislation (i.e., by coercion) or by persuasion? When we give up on persuasion and resort to force to achieve desired outcomes, we lose a good bit of freedom.”

    I am wondering why persuasion and organized public policy advocacy (for administrative, legislative, and judicial changes/influence) are mutually exclusive. Is engaging in the latter really “giving up on persuasion” or simply an important subset of the former within our participatory republic? Is there a necessary conflict between faithful Christian living and what the American political experiment deems to be responsible, participatory, public citizenship? Am I in error when I hope Christians in America would retain/regain a place at the public policy table (note: “a” place, not the “only” place of power at the head of the table)? I do not understand this All-or-Nothing approach of viewing any “legislative” influence as equivalent to coercion (“legislation (i.e., by coercion)”) and freedom-denying tyranny.

    Hoping that current hot-button definitions of “public accommodation,” “crime against nature,” and “social ills” can possibly be changed by private persuasion alone (to the forced exclusion of organized public policy advocacy) seems to grossly underestimate the extent of original sin and the extremely well-organized, well-funded, and emphatic cultural trend to marginalize and criminalize Christian morality, and to overestimate a “sanctifying” effect of common grace.

    • Hi Noye,

      I’m quite in favor of participation in the process! I think Christians should participate in civil/public life. What I’m opposed to or worried about is coercion by the state in lieu of persuasion. By coercion I mean, “Do this or go to jail.” Participation, advocacy etc, seems to me to be persuasion, not coercion. So, I don’t see persuasion and participation in civil life as contradictory.

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