Cake ExplosionsThe government has put freedom of expression and antidiscrimination laws in conflict.
by T.J. Nelson
ots of social conservatives are justifiably upset with the events in Indiana and their subsequent capitulation to the gay rights movement. Some commentators see it as a call to civil disobedience, where we should take a stand for religious freedom. This would be a losing proposition. The real problem is that our laws are in conflict with the Constitution.
Judge Andrew Napolitano argues that Indiana's RFRA (Religious Freedom Restoration Act) is unconstitutional and violates the 1964 federal Civil Rights Act, which prohibits discrimination in housing and public accommodations based upon race, sex, religion, beliefs or national origin. There is, he says, no religious-based defense.
Almost no one has any problem with this. But a problem arises when private individuals are prohibited from denying customer demands they consider unreasonable. When this was limited to denying housing based on race, no one cared. But, as Barry Goldwater foresaw, laws always have unexpected effects, and now they're interfering with our basic human rights of religion and freedom of speech. The question becomes: is a customer's demand unreasonable when it infringes on the vendor's constitutional rights?
If Napolitano is right, the answer is currently no, and the other states who have tried to resist the recent challenges to religious liberty will have their laws overturned by the courts.
It is no coincidence that these cake explosions have occurred since the election of Obama. The problem is not the Civil Rights Act itself, but its expansion by Chai Feldblum, a 2010 Obama appointee. The Civil Rights Act originally prohibited discrimination on the basis of sex. In 2012 Obama's EEOC changed this to ‘gender identity’ under Title VII. In recent years, the left has equivocated sex and gender, then redefined gender to be whatever they want it to be. EEOC's adoption of this change was the wedge they needed to expand the Act far beyond its original meaning. It puts anti-discrimination laws at odds with freedom of speech. Unless the federal laws are fixed, one of these will be destroyed.
One solution is to repeal the law entirely, as Rand Raul advocates, on grounds of unconstitutionality. But a compelling public interest exists in preventing people from discriminating on the basis of race, color, sex, religion or national origin in housing. Unfortunately, Title II, which applies to hotels, motels, restaurants, and theaters open to the public, and Title VII, which applies the law to employers with 15 or more employees (except for American Indians, religious groups, and nonprofits), have been misappropriated by the Obama administration. The result has been chaos.
Now vendors of any custom products—custom car designers, ghost writers, anything that involves artistic input for a fee—can be forced by the government to produce and say whatever anyone demands. Before this, conservatives could pretend it wasn't a freedom of speech issue because the government was not involved. Now this is impossible.
The left knows this will create huge problems. Many have commented that Muslims can now be forced to make sizzling juicy bacon-filled pork briskets, or a cake with a humorous image of Muhammad on it—which would cause the Muslim baker to be murdered. Jews can be forced to put messages praising Hitler on any customized product. The authoritarian left is waiting for this. They are working on a solution even as we speak: hate speech laws. Their ultimate goal is to use government to deny all speech except that which they approve.
Already, the effect is to prohibit custom cakes unless the messages are expressly approved by the government. The only solution for bakeries is to stop making custom cakes altogether. If a particular cake is not on the inventory, customers would have no more right to demand it than to demand that a bakery sell them a 15 millimeter twelve-point metric socket wrench.
We can't blame the left for this: for whatever reason, they seem to have no sense of right and wrong. We need people who lack a clear moral sense, because their abuse of laws helps us to refine them. In fact, just as Emile Durkheim thought of criminals as being beneficial to society by creating a normative consensus, leftists may be doing us a favor by exposing just how badly our laws can be abused. But this presupposes that an opposition party is willing to do something about it.
Until we get one, the course is clear. If a customer wants a special message on their cake, sell them a pen. Welcome to our collectivist, mechanized, homogenized, standardized future, and enjoy it while you can. It will not stay confined to bakeries for long.
Once the government tells you what you can and cannot say, and what you must say—and do—to stay out of prison, your only recourse is to say, and do, nothing. This legal morass is unjust and it must be changed. Fix this now.