[Published in the Front Range Voluntaryist, article by Mike Morris]
The right to discrimination is needlessly controversial. It is only that we have come so far from any ideas of liberty, conceived of as a right to be free from coercive interference (say, by a State), that we would have to even ponder the solution to this case of the Colorado baker who has refused service to a homosexual couple, in what has become Masterpiece Cakeshop v. Colorado Civil Rights Commission.
The choice is very easy, and leaves our choice of answering in the clear: either (1) a man has a right to not do something to/for someone; or (2) a man (or in the case, a homosexual couple) has a right to force someone to do something for him. There is no third possibility. One of these must be selected.
Easily, then, in the name of liberty, it is the man who's simply saying that he doesn't want to do something for someone. The people who demand that someone else must do something for them have no case. The purpose of the law is not to compel people to act, but to protect people from aggressive invasions of their property rights. That the courts are confused on the case is an indication that the law is anything but one that guarantees the people rights.
This is the unfortunate point we're at in our modern political reasoning among the also divided public. Someone not doing something for you, i.e., not paying for your birth control, has become akin to denying you the ability to buy it yourself, which is not being done. It's a shame that we even must spell these things out. Discrimination is a natural right of everyone.
The connotations of this word do not need to suggest that such discrimination is racial or sexual; this right applies for any reason. That issues like this make it to the supreme court are a testament to a lack of granting another man liberty, but where people are imbued in a spirit of controlling others.
Daily discrimination
So the choice should be easy. The man not acting for someone is in line with the principle of non-aggression. He has not committed violence against anyone; he has simply said that he doesn't want to do something. The plaintiff party, the gay couple, are seeking to use the coercion of state-made law against him.
There should be no distinction between a man's rightfully owned property, whether it is his home, his car, or his business. Because one decides to take their efforts to a storefront should not change one's rights. This idea of “commercial property” is to unjustly create another category of property. The private property ethic applies to all justly owned property. Property doesn’t suddenly become “public” because someone decided to exchange their goods and services for money in the market. Just as a man should be free to not welcome anyone into his home for dinner, equally so must he be free to decide who enters his business.
But just like "equality" is unachievable, discrimination is unavoidable. A man who is loyal to one woman is discriminating against all other women. A man accepting a job with ABC Co. is refusing to contract with XYZ Corp. We discriminate every day for various reasons, and it is the nature of our being.
The very central component of economics of choice implies discrimination. Purchasing Product A is to not purchase Product B. Choosing to vacation in California is to forego standing in Florida at the same time. We must always prioritize, or rank, our preferences in the face of scarce means towards a nearly unlimited amount of ends one would like to fulfill. This means choice and foregoing other options, in other words, discrimination.
As other libertarian philosophers have pointed out, private property means discrimination. If A owns X, then B does not, and their relationship to X is not equal. B cannot do with X as he wishes, as it is the rightful property of A. Thus, laws against discrimination are invasions of property rights, and should be seen as criminal, not the other way around in which people think the gay couple's "rights" [to someone's services] were infringed upon.
Freedom is nothing without the freedom of association. This is just what liberty is: private property rights which imply exclusion and control over the property.
How many other silly ways does discrimination occur which never gets questioned whatever? "Ladies night," for one, is something that's never challenged. Men don't say they should be able to get in for free. A gay club for instance might only allow male dancers, discriminating against females. For no other reason than the sake of increasing the female ratio in the technology workplace, it is said that there are too many men. But it is never said that there is a shortage of men in nursing, where women freely dominate around a ratio of 10 to 1.
Again, these differences are something to relish in. That we're all unequal is what allows us to produce indefinitely more things for each other in the economy rather than if all our skills and talents were the same. Inequality is what gives us the division of labor.
To be honest, I find it sad we even need to make the case for what amounts to one's right to associate or disassociate with another as they see fit. In this case, the baker refused to associate with a customer demanding he use his energies at their request. It is his right to do so, no matter what legislators have written into "law."
What should have happened at this point is for the two people to go their separate ways. Since the businessman is on his property, that is, for the couple to walk away and search for someone else. They should have never been known, but instead decided to make a case out of it.
The gay couple
Who do they think they are, honestly? What is their case but, “This guy, like, didn’t do something for me...and so I want to legally injure and harm him because he didn’t do something to me.”
Is that how law works these days? It’s no longer torts for genuine invasions of property rights, in which one seeks restitution for damages, but now we may force others to do things for us? As Bastiat would have said, this is the law perverted!
The judges
For the judges, who one shouldn't expect to be philosophers, apparently this issue of rights is not so clear-cut. They're left questioning all these issues that are not related to the rights of the baker, such as making arbitrary decisions if they think his work qualifies as "art" or "expression," in which he should be free to deny art.
But what kind of experts in law are a legal community that is “torn" or “sharply divided" on such a simple issue? They question whether it’s an “artistic creation” which justifies his refusal, if the gay couple had a "right" to not be discriminated against, or some other criteria. But this is simply an issue of property rights.
The baker
Especially in the case of sole-proprietorship is discrimination clear-cut. The man owns his business and has a right to exclude customers at his will. There isn't really much more to it than that. It certainly shouldn't have made it to the highest court in the U.S.
An employee of a company which didn't have such a policy in place, but in which that employee discriminated against a customer anyway, then the issue is only somewhat different. Here, the state's law should still not be used against this person, but it should be on the employer whether or not they wish to fire said offender of their non-discrimination policy.
The sad thing is this is a rare case, where a man own's his bakery, in which he is being harassed by the gay couple through the use of the law. Businesses at large do not discriminate because they do not want to, and it would not be financially beneficial to do so. They could have found anywhere else.
Watering down the case
All rights are property rights. To say that it is a man’s “religious right” to refuse a cake or that it is a man’s “right” to “equality” is to miss the point. This is an issue, again, over whether or not a man has a right refuse entry into his business, or whether a man has a right to be in his business and demand services be provided.
If the law of private property was used to decide the case then it’s clear-cut. Since rights are negative, it is the right of the baker to refuse service. To grant a positive right to anyone else for his services is to deny a man his right to not act for someone.
It doesn't matter then if it's "artisitic" or if he just throws ready-made mixes in his easy bake oven. He should not be compelled to act for another.
Proponents of the alleged right to force someone to custom make you a cake have tried to make any number of other examples of what they fear a decision in favor of the baker could lead to, such as, "what if someone doesn't bake a cake for a black family's birthday party because they don't like to celebrate black lives?" But this is inserting emotion into the issue.
For the advocate of freedom, this is an issue of property rights. It is not about the couple being gay or the baker claiming a religious right. It's not about "first amendment rights," "right to expression," or "gay rights," or anything else. It is about the freedom to contract, or not contract, with the people of each person's choosing.
This is about consensual and voluntary relations, not coerced ones. In this case we can fall back on basic first principles of libertarianism that the baker owns his shop and the product of his labor just as he owns himself, and therefore no one has a superior right to insist that he act for them.
This is also why, in law, crimes are only physical invasions of property rights. The gay couple claimed that they were emotional upon being denied the cake (but apparently didn’t want to go to any other baker and ask them). But being emotionally distraught that someone turned you down is not an invasions of property rights anymore than is someone’s envy that two people are better off by freely exchanging with one another.
Sadly, the unfortunate face of libertarianism, the Libertarian Party, seemingly can't even get this simple issue right. Gary bake-the-cake Johnson apparently had no grasp of private property rights being at the heart of libertarianism, a philosophy he supposedly subscribes to.
Is discrimination good?
In a sense, it might be said to be good. It allows businesses to keep customers out that don't benefit them as customers, and to continue on with their operations satisfying other people. We are seeking mutually beneficial relations, not coerced ones, and forcing people to associate where one party has not agreed is immoral and, I would think, awkward.
Who wants the services after all of someone who didn't want to provide them to you? Venting out some ideas online regarding the case, a follower posed to me, "could you even eat the cake?," meaning, could you even feel good about doing it? Relationships are personal, and I don't know how they could. I personally want nothing to do with someone who wants nothing to do with me.
To the sure opposition to this line of reasoning, we can simply swap the actors who they're emotionally involved over (the gay couple, the religious baker) with other actors and see if they would still uphold this: Should a Jew be forced to bake a cake for a Nazi? Hopefully the answer is decidedly "no."
If you're on the side of anyone who believes they have a right to another man's services, to use a language common the them, you're a fascist. The people who consider themselves "antifascists" though might disagree, as their definition of fascism is in large part an opposition to discrimination, political incorrectness, or for "gay rights," rather than to have anything to do with real—property—rights.
Implications
It is when we get away from a society that has a strong sense of property rights that we begin to fall. In one last example, I was recently approached for open carrying in a business. The hesitant lady asked, "do you have a permit for that?" I kindly told her that you do not need a permit to open-carry, but that I will gladly leave her business. My point, I wish she would have just appealed to property rights rather than to beat around the bush. She could have just said, "we don't allow open-carry in here." I never once insisted on staying and being served. There was no indication on the door they did not, so I hadn't known it was their policy. This doesn't bother me. My right, in fact, is to abstain from supporting businesses which don't allow firearms.
Finally, what I would advocate as a right (say, to use drugs) should not be confused with something I actively condone. Personally, I would only discriminate based on merit and never race, sexual orientation, etc., at my business. I don't believe an award in favor of the baker would trigger a wave of discrimination. Most businesses will find it imprudent to do so.
What a precedent like this might set is for everyone to become even more litigious than they already are. To award the case in favor of the denied potential-customers might lead people to head out on the town and find someone who doesn't do something to them for them to sue.
A society imbued in the false doctrines of positive rights, rather than liberty conceived of as negative rights, is in the long-run unsustainable. This is setting things up for a system of plundering each other rather than to engage in peaceful cooperation that is needed for a thriving civilization.
This right of discrimination and freedom of association should apply to political ones as well. We should be able to use this right of discrimination, call it a "religious right" if you will, against our mandatory support of the State. It is immoral to me that I am a compulsory financier of the U.S. government's terrorism (it's only "illegal" to fund terrorism when they define it), and I want to play no part in it any longer.
Discrimination should be everyone's right. It is what is conducive to man's nature. Forced association is the opposite of liberty.