Tag Archives: Colorado

Have Your Cake and Speak It, Too

There’s a case out of Colorado that has the left and the right of our political spectrum in a stew. A bakery near Denver, one Masterpiece Cakeshop, refuses to sell wedding cakes to gay couples. Administrative law judge Robert Spencer says that the business will be fined if it continues this policy.

Royal_Wedding_Cake

Regular readers of this weblog know that I am a supporter of equal rights for all, straight, gay, or in between. I see it as necessary for our society to give official recognition to the marriages of gay or lesbian couples. But there is more here that just one set of rights.

The owner of the bakery believes that gay marriage is wrong. He sees it as going against his Christian beliefs. So be it, and I don’t feel qualified to comment on that. But he is in a creative business. His cakes are his speech, in the same way that a musical composition, a photograph, or a sculpture is speech, as we understand the concept today. To require him to bake a cake in celebration of something he disapproves of is to force speech.

If Masterpiece Cakeshop sold oil changes, there would be no question here. It should change the oil of anyone who can afford that service. If the bakery sells pre-made cakes, those should be offered to anyone who has the money. But if the business is using the creative skill of its employees to make products to suit its customers, it has to be free to do that in whatever manner those creators see as right. When the business and the customer can’t come to an agreement in that situation, the two must be free to part company and seek others.

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Whose Business Is It?

The recent shooting incident in a movie theater in Aurora, Colorado raises a question of basic rights. According to the reports that I’ve seen, the theater in question bars the carrying of firearms. Of course, we see how well a sign declaring a “gun-free zone” worked, but that’s another matter. I want to consider the broader point about the boundaries of rights.

Take my home as an example. It’s generally agreed that I have a large measure of a right to privacy within its walls. Under our laws, if the government wants to come in, there must be a warrant issued by a judge to allow that, minus a small number of exigent circumstances. Our government violates that all too often, but many of us recognize that to be a violation. In addition to privacy, I have the right to say who gets to come in and what my guests get to do while visiting.

But what about a business? If I own a business, how much control over the behavior of visitors do I have? A business operates in public. We’re not talking about private clubs here, so we’ll leave aside questions as to whether a golf course can bar blacks or women. The point is what rules a store that is open to the public can have.

It’s here that we need to distinguish between passive and active rights. Take the case of a woman walking into a store while wearing a hijab. She is practicing her religion in public, but that’s a passive practice. If she walks around speaking to customers about her beliefs or if she calls out a prayer, she’s moved into action.

I chose the example of Islam first precisely because it’s the one that many Americans will have difficulty with. But the same question applies to a Jewish man who wears a yarmulke.

As I said above, a public business is just that. It has to be open to everyone who comes to participate in the business. A store owner has the right to remove someone who is disrupting that business, but the passive expression of a person’s basic rights–in the examples given, the right to exercise of religion–is not a disruption.

How does this apply to the events in Aurora? The handgun that I carry concealed on my person is not a disruption to the normal activity of any business. Unless I’m in imminent danger, it won’t be visible. I don’t cross over into active expression of my right to self defense on a whim. Since I am passively exercising my right, the business has no justification in banning what I do, any more than it would have to ban a yarmulke or a hijab. The laws in some jurisdictions don’t comply with rights in this regard, and those need to be changed.

What this points to is how much freedom we each may have in public. As always, I seek the most freedom that we all can have while we’re together.