Masterpiece Cakeshop: Freedom of Speech versus Anti-Discrimination Laws

Stephen Kershnar

Masterpiece Cakeshop: Freedom vs. Anti-Discrimination Laws

Dunkirk-Fredonia Observer

October 15, 2017

            The Supreme Court will soon decide a case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, that addresses whether the state can force a baker to make custom cakes for gay marriages. The case shows the degree to which the government (here, Colorado) will trample on liberty in pursuit of cultural reeducation.

            In the case, a gay couple (Charlie Craig and David Mullin) approached a baker, Jack Phillips, and asked him to design and create a wedding cake to celebrate their wedding. Phillips declined because of his religious beliefs, but said he “would be happy to make and sell them any other baked goods.” Craig and Mullin easily found a rainbow cake from another bakery and then filed a discrimination complaint. Phillips believes that decorating cake is an art and that he honors God through his artistic creation. Phillips objects to the state compelling him use his skill to design and create art that contradicts his traditional Christian beliefs. The state concedes that Phillips’ work involves considerable skill and artistry.

            The Supreme Court should find this case easy. First, the state is requiring Phillips, in order to be a commercial baker, to affirm ideas that he rejects. This violates black letter law. In West Virginia State Board of Education v. Barnette (1943), Justice Robert Jackson famously said, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religious, or other matters of opinion or force citizens to confess by work or act their faith therein.” This is true regardless of whether Phillips is required to provide a specific message or a work of art. It is this, Phillips argues, that protects Jackson Pollock’s painting, Arnold Schoenberg’s music, and Lewis Carroll’s writing.

Law professors Larry Alexander, Randy Barnett, and others argue that this principle prohibits the state from being able to make a gay florist provide flowers to an event opposing gay marriage or a black baker make a “Black Lives Don’t Matter” cake for the KKK. Even Colorado found that when three bakers refused to create cakes disapproving of gay marriage, they didn’t violate Colorado’s anti-discrimination law.

            Even if Colorado were not coercing Phillips into publicly endorsing gay marriage, the state’s requiring Phillips to make such a cake would be unconstitutional anyway because it favors one viewpoint (same-sex marriage is good and right) over another other views (same-sex marriage is bad and wrong).

            More important than the legal issue is the moral one. Colorado is trampling on Phillips’ moral right to expression by forcing him to endorse an idea he rejects. People’s moral rights rest on their rights to body and property. These rights justify other rights. Among the rights they justify are rights covering association, expression, religion, and sex. These rights allow people to pursue their own projects so long as they do so in a way that doesn’t highjack others’ bodies or property. In this case, the state is taking Phillips’ labor and property and using them to promote a message he rejects. The fact that he rejects it because of his religion just makes it worse.

            Colorado might provide a few arguments for its action. First, it might argue that Phillips is harming the gay couple because his refusal to make a cake for them offends them or insults their dignity. The problem is that people have neither a moral nor legal right not to be offended. If Phillips had a bumper sticker that that said, “Christianity disapproves of homosexuality. See 1 Corinthians 6:9-10 and Romans 1:24-32,” this might offend the gay couple, but it wouldn’t infringe their rights. It is unlikely there is a right to have one’s dignity respected because it is mysterious what this would amount to other than a claim to have one’s rights respected.      

            Second, Colorado might argue that Phillips’ cake-making is conduct and not speech and, thus, not part of his moral right to expression. However, it is hard to see how an artist’s work is not expression. The work of Pollack, Schoenberg, and Carroll is expression even if it lacks a particular message. This is true, even if these artists sell their work to the public.

In addition, Colorado required Phillips to make a particularized message as it ordered him to create the same custom-made cakes for homosexual couples that he would make for heterosexual couples. Thus, he might be required to produce a beautiful-and-unique cake that says, “God blesses this marriage.” The state concedes that he may refrain from making a “God condemns this marriage” cake. Clearly, the state is mandating a particular message. One wonders whether it would require a Christian painter to make a “God digs lesbianism” oil painting.

            Third, Colorado might argue that if the moral right to expression exempts businesses from anti-discrimination law, this would invalidate much, if not all, anti-discrimination law. There is a sharp conflict between the rights people have to their body and property and state laws requiring them not to discriminate on the basis of race, sex, religion, and so on. Just as women have a right to discriminate in terms of who they let in their body and homeowners have a right to discriminate in terms of who they let into their house, business owners should have a right to discriminate in terms of who they let in their business. This is true whether the people who want to be let in are customers or employees.

Even if one thought that anti-discrimination laws are just, most businesses are not directly involved in expression, whether specific ideas or artistic visions. As a result, the moral and legal rights to expression likely do not apply to them.

            In short, Colorado should not compel bakers, florists, photographers, etc. to service gay marriages. Such compulsion violates the Constitution and tramples on people’s rights.

NFL Protests: Good and Bad Reasons to Allow Them

Stephen Kershnar

NFL Protests: Good Reasons and Bad Reasons

Dunkirk-Fredonia Observer

October 2, 2017

            There are good and bad reasons for allowing kneeling during the national anthem. The NFL players gave bad ones and are embarrassing themselves.

            In 2009, the NFL required players to be on the field for the anthem. The justification for playing it and requiring players to be on the field is two-fold. First, it honors the United States. Second, the anthem honors veterans, especially combat veterans and veterans killed in action.  

            Last year, 49ers quarterback Colin Kaepernick and other kneeled during the anthem. Kaepernick felt that the U.S. oppresses black people and allows police to disproportionately kill unarmed black men. Last month, Donald Trump suggested that NFL owners should fire players who kneel during the national anthem because they disrespect U.S. heritage. Two weeks ago, in response to his comments, over 200 mostly black players in the NFL sat or kneeled during the national anthem. Other players linked arms with their teammates or raised fists. Three teams stayed in the locker room. The players gave three reasons for doing so. They wanted to (1) support freedom of speech, (2) express their disapproval of Trump’s criticism of the black players who had been protesting, and (3) oppose Trump’s intimidation.  

The free-speech concern is mistaken. The NFL is not a state actor. As a result, it may, and often does, interfere with players’ and teams’ speech. The concern for Trump’s criticism of Kaepernick et al. begs the question because it assumes that the original protests were plausible and respectful. This is precisely what Trump denies. Criticism of Trump for intimidation is also off base because he didn’t threaten anyone.   

The concern over police killing unarmed black men is mistaken. Consider data from The Washington Post’s Wesley Lowery, while blacks commit roughly half of all murders, assaults, and robberies, they were only 24% of those killed by police. Philosopher Philippe Lemoine points out that the likelihood of unarmed black men being killed by the police (16 in 2016) is roughly the rate of their being struck by lightning. Similarly, a widely cited 2016 study by Harvard economist Roland Fryer found that blacks were not more likely to be shot by police. They were more likely to be subject to police violence (for example, touched, handcuffed, pushed to the ground, or pepper-sprayed) even after controlling for where, when and how they encounter the police, but that’s a different issue.

The reason the NFL, leagues, and schools should allow the kneeling, sitting, and raised fists during the anthem is that we want people’s expression of patriotism or support for veterans to be voluntary. Requiring people to salute the flag in order to play football is about as voluntary as making workers pay union dues as a condition of employment.  

The notion that people at sports events should stand for the flag to celebrate veterans is yet another error. First, veterans have not contributed more to America than have other groups such as farmers and intellectuals. As a result, they should not be singled out for special recognition or gratitude. Without farmers, most Americans would have starved long ago. It is simply not true that the well-being of U.S. citizens depends more on veterans than farmers. Without intellectuals, the U.S. would not have existed. Nor would it have been free or had the technology to effectively fight wars, cure and treat disease, or grow large amounts of food.

Rare is the individual veteran who made a big difference in the war effort. Those who did, for example, General Patton or Admiral Nimitz, were few and far between and contributed as leaders rather than as soldiers or sailors.  

Being in the military is more dangerous than most jobs, although it is likely safer than being a logger or fisherman. In any case, focusing on the danger of a profession misses the point of why we shouldn’t be more grateful to veterans than to other workers who keep us alive, free, well-fed, and educated. A job carries with it a package of costs and benefits. Different packages are attractive to different people. Members of the military do not deserve special recognition or gratitude if they picked a job package they most preferred.

Being in the military has some significant costs. These include the chance of being killed or severely injured and lengthy time away from one’s family. It also includes the chance of being morally compromised by being asked to fight in useless wars (consider, for example, World War I) or in unconstitutional ones that require soldiers violate their enlistment oath (consider, for example, Clinton’s war on Serbia and Obama’s war on Libya). The benefit includes being part of a band of brothers, valuable training, opportunity for leadership, high pay (consider early retirement), travel, adventure, getting in shape, and so on. Whether it is better to be a soldier or factory worker depends on an individual’s preference. If some people opt for the military package over the factory package because they prefer it, this is not something for which we should be grateful.

The notion that people should stand not for veterans or combat veterans, but only for those who were killed, is at odds with much that is said and done during the national anthem. In any case, we shouldn’t be grateful to veterans who were injured or killed. To see why this is mistaken, consider people who win a lottery. The lottery is fair if it was reasonable to both parties when the ticket was purchased. If it was reasonable to both, then neither party need be grateful to the other. Next consider a reverse lottery. Here players get a good sum of money in return for taking a small risk of death or severe injury. Again, if reasonable, no gratitude is owed. Military service is like a reverse lottery.

             A defender of standing during the anthem might argue that the above discussion misses the point because many young men were made to fight via the draft and hence we should be grateful to them. This is different from being grateful to veterans who were killed. In any case, let’s assume that draftees were made to fight against their will. If this is correct, then we should not be grateful to them any more than we should be grateful to slaves. We should be sorry for what we did to them and both compensate and apologize to them, but we should not be grateful. In any case, few people who put forth this view denounce Presidents Wilson, Roosevelt, and Johnson for enslaving young men. This suggests that this is not what justifies standing at the anthem.  

            The reason the NFL should allow people to kneel, sit, or raise their fist during the national anthem is that we want expressions of support for the military and patriotism to be voluntary rather than just another job requirement.

Following Charlottesville, an undue focus on racism

Stephen Kershnar

Racism and America

Dunkirk-Fredonia Observer

September 15, 2017

            Following the Charlottesville debacle, there has been a constant discussion of racism as a major cause of the problems of the black community. It is worth considering whether this is so.  

            Princeton University sociologists Devah Pager and Hana Shepherd report that Blacks (and Hispanics) see racism as handicapping them. A 2001 survey found that more than a third of blacks report they had been passed over a job or promotion because of their race. A dated poll (1997) found that roughly half of blacks reported having been discriminated against in the past month. 

            The argument against racism being the main explanation of the black-white gaps in money and well-being is that the gaps correlate with population differences in behavior and, likely, attitudes that cause the different behavior. These behavioral differences likely cause some of the differences in money and well-being. To the extent that individuals are morally responsible for such behaviors and the attitudes that cause them, the gaps result from factors for which individuals are morally responsible.

            Consider poverty. The Brookings Institution’s Ron Haskins argues that statistically if American adults do four things they have a 75% chance of joining the middle class and only a 2% chance of being poor. The four things are: graduate from high school, do not have children until you are married, wait until 21 to get married, and have a full-time job. If people are morally responsible for their actions, this is not too much to ask. Yet more than seven out of ten black children are born out of wedlock. This is also true for one out of two Hispanic children.

Haskin further points out that children in female-headed families are four or more times likely as children from married-couple families to live in poverty. Poverty is associated with a number of problematic outcomes including criminality, divorce, dropping out of school, health problems, longevity, out-of-wedlock births, poor grades, substance abuse, being a victim of violence, and, importantly, happiness.  

            Consider next saving and investment. Using 2013 numbers, a Federal Reserve study found that the average white family has twelve times the wealth of the average black family ($134,008 versus $11,184).  While Whites have roughly a third of their assets invested in financial and business assets (median ranking), blacks have less than one in ten. The gap in financial health is noticeable even if we compare white and black families who are middle aged and have advanced degrees. The same is true even if we control for age or education. The fewer assets and lesser investment suggest a behavioral difference rather than discrimination.

            One objection is that racism and individual responsibility are compatible. In the same way that the tax code can shape behavior and religion can shape attitudes without undermining responsibility, racism can shape behavior and attitudes without undermining the responsibility. As a philosophical matter, this is unclear. To the extent that external forces explain why people think and act in certain ways, it is plausible to think that they crowd out responsibility. By analogy, consider genetics. If genetics makes men disposed to be more aggressive than women, this makes them less blameworthy for aggressive behavior than women, even if it does not eliminate responsibility altogether. Childhood environmental influences are sometimes on par with genetic conditioning in that they are, at least in part, outside of people’s control.

            Pager and Shepherd argue that discrimination affects blacks’ opportunities and that it has a cumulative effect on their social and economic condition. If racism affects minorities, it does so unevenly. For example, according to the Pew Research Center, more than four-in-ten Jews and three-in-ten Hindus live in households with household incomes of more than $100,000. Jews also cash in at the high end. They are one in four of the 400 wealthiest Americans (2011 number). Asian American men are the highest earning racial group. They earn 17% more than their white counterparts. Still, this is consistent with the possibility of discrimination being blunted by social, economic, or genetic capital.

            Even if Pager and Shepherd are correct, it does not follow that the discrimination is wrong, bad, or that society should focus on it. The reason it might not be wrong or bad is that it might be rational. If certain groups have worse values or behave in a more destructive manner, there is good reason to avoid them. One study using federal government numbers found that controlling for population size, a black person was far more likely to attack a white person than vice versa. In 2013, for example, a black person was fourteen times more likely to kill a non-black person than vice versa. The concern about inner city behavior (for example, violence, downplaying school, and loud music) is frequently articulated even in the black community. It is unclear whether it is reasonable to demand people ignore purported differences even if racism caused the differences. The greater out-of-wedlock birth rate and criminality of Hispanics when compared to Asians might solely be due to racism and discrimination, but this is consistent with preferring, other things being equal, to have the latter as neighbors.  

            Even if much of discrimination were wrong or bad, it might not be the best place to focus efforts. No one seriously thinks that it is better to focus black high school girls on racism rather than making them aware of contraception (for example, the birth control shot at Planned Parenthood) or getting them up to speed in math. The left’s focus on white nationalists and discrimination and silence on broken inner city public schools, over-criminalization, mass incarceration, and single-parent families shows that it cares more about politics than improving black people’s lives.

               There is an undue focus on discrimination. It is unclear the degree to which it produces racial gaps, the extent to which it is wrong and bad, and whether it is worth the attention it receives.