Bakers, Cakes, and Same-Sex Weddings

Last week, the U.S. Supreme Court heard oral arguments in the case Masterpiece Bake Shop v. Colorado Civil Rights Division.  The issue in this case is whether a baker is compelled by law to bake a cake for a same-sex wedding ceremony; or can the baker legally refuse to participate in a same-sex wedding because it violates his religious beliefs.

Some of the argument focused on First Amendment free speech and expression claims.  Does baking a cake for wedding constitute speech?  If so, can one compel another to engage in speech making, and to engage in speech making that communicates a message that the speech maker fundamentally disagrees with?  The argument also focused on the interpretation of anti-discrimination laws as applied to public accommodations.  Can a business open to the public refuse to sell a product to someone based on that person’s identity?

The back and forth between the justices and the attorneys was very interesting to listen to.

I think, however, the issues surrounding this case should be framed differently.  It seems to me that at the heart of this case is the notion of liberty.  A person who runs a business should not be compelled to do anything he does not want to do.  In this country, however, we now have anti-discrimination laws that apply to public accommodations, so there may be limits of the business owner’s liberty.  Let’s examine this a bit more closely.

The same-sex couple who wants the baker to provide a cake for their wedding claims that the baker’s refusal to do so is based on their homosexual identity.  This refusal, they claim, violates Colorado’s Anti-Discrimination Act.  This is incorrect.  The baker did not refuse to bake the cake based on the couple’s sexual orientation.  We know this because the baker was happy to sell the couple other baked goods in the store.  Also, when couples plan a wedding, they often involve family and friends in the process.  Someone may be in charge of getting flowers.  Another may have the responsibility to find a DJ or a band for the reception.  It is possible that the married parents of, say, the bride may be asked to find a baker to provide the wedding cake.  In this case, the married parents of one of the men could have gone to the Masterpiece Bake Shop to order the cake.  The baker would have similarly told the parents that he would not provide the wedding cake.  It would be difficult to charge the baker with discrimination based on sexual orientation given that the ones in the bakery ordering the cake were a married man and woman.

The baker simply does not want to use his talents to design a cake used for a purpose that he finds violates his conscience, no matter who requests it.  The baker’s refusal does not amount to discrimination on account of sexual orientation.

The First Amendment protects the baker’s right to free exercise of his religion.  To coerce the baker to engage in activity that is counter to his beliefs violates his right to free exercise.

Let us assume, for the sake of this discussion, that the baker did refuse to provide the cake for the couple on the basis of their sexual orientation and said so.  That would violate the Colorado anti-discrimination law but it would not violate federal law.  The Civil Rights Act of 1964 does not extend protections to individuals due to their sexual orientation.  Also, I am fairly certain that no one in Congress in 1866 voted to propose the Fourteenth Amendment thought they we were providing legal protection for homosexuals on account of being homosexual.  The same can be said of those in state legislatures who voted to ratify the Amendment.

The reason we have the Civil Rights Act of 1964 and the Fourteenth Amendment is because we wanted to protect the rights of people of African descent in the United States.  Blacks were first brought to America nearly 400 years ago.  They were brought here against their will and sold as slaves when they arrived.  By the time of the 1860s, this would be the only home their descendants had ever known.  By the 1960s, those descendants would be fully Americanized Americans.  The primary goal of civil rights legislation of the 1960s was to integrate blacks into the fullness of American life.  This included guaranteeing access to public accommodations.  This guarantee is at odds with the liberty of those who own businesses.  However, given the history of racial oppression and the potential of creating two tiers of citizenship by denying access to public accommodations, an exception to the liberty interest was made.  Homosexuals do not have the same claim to this exception.

This brings us to June 26, 2015.  On that day, the U.S. Supreme Court issued the Obergefell v. Hodges decision.  This decision compelled states to recognize marriages between people of the same sex.  This decision was not based on anything written or implied in the Constitution.  This decision is why the Court is grappling with this issue of religiously liberty and the “civil rights” of homosexuals today.  Today the Supreme Court is dealing with a mess of its own creation.  The can of worms the Court has opened could have and should have been avoided.  The five members of the Court, led by Justice Anthony Kennedy, should never have voted to inflict the Obergefell v. Hodges opinion on the nation.

National Identity

In 1980, I got into a conversation with the student sitting next to me in freshman English class.  I noticed that he had a T-square in his knapsack.  I asked Patrick if it belonged to him.  That may seem like an odd question – and it was, given that the T-square’s cover had his name on it – but the cover contained additional information: Jamaica, West Indies.  Given that we were attending school in New York, I would not have expected to see a Caribbean island address.  However, that was not what I found most unexpected.  If he were to claim a home outside of the United States, I would have expected to see People’s Republic of China.

Patrick assured me that despite his Asian appearance, he was, in fact, Jamaican.  He refused to speak in a Jamaican dialect when I requested that he do so because I was not Jamaican.  Several months later, I did hear him speak in that dialect with other Jamaican immigrants.  As a 13-year-old, I found this puzzling because I had always “known” that Jamaica was populated with people who descended from Africa.  I had no idea that ethnic Chinese lived on the island.

I thought of this high school experience recently in light of our current national debate on immigration.  I offer the following thought experiment.  Let’s say that in the year 2000 the Jamaican and Chinese governments had agreed on a particular arrangement.  Among the terms of the agreement was that each year 125,000 Chinese citizens (men, women, and children) would emigrate from China to Jamaica.  Given that China is a country of well over one billion people, this migration would have negligible effect on its population.  However, Jamaica, an island with three million people, would be greatly affected by such a migration.  If this agreement had gone into effect in 2000, there would likely be approximate parity between the Chinese and African populations on the island by now

Let us assume that, like Patrick, the Chinese migrants would assimilate into Jamaican culture: learn English and the Jamaica dialect; learn Jamaican history; eat the same foods; and listen to the same music.  The children, and some of the adults, would, by 2017, be fairly close to being culturally Jamaican.  I wonder about reactions of a black Jamaica-born person, who has lived in the U.S. since the 1990s, visiting Jamaica for the first time since leaving the island?  I suspect he would feel that he was visiting a country he did not recognize.  Jamaica would still have much of the same architecture and infrastructure.  The music on the radio and the streets would be the same.  The food would be much like he remembered.  The language and culture would largely be unchanged.  Still, the island with a 50% Asian population would not look like the home he left two decades ago.  The fact that the ethnic mix of the island had radically changed, would likely make him question whether or not he was actually visiting Jamaica.  “Where did my country go?”

Jamaica has a particular climate (tropical) and terrain (mountains inland and beaches on the coast).  It has a diverse economy (coffee, sugar, bananas, fishing, mining, tourism, etc.).  Most of its residents are Christians with their own dialect and cuisine.  Those things help define the country.  However, a key characteristic of what makes Jamaica Jamaica is the fact that Africans populate and run the place.  Without that characteristic, the island would lose an important trait of what defines it as a nation.

This thought experiment could help shed some light on how we in the United States view ourselves.  We have in our country people who descend from all over the planet.  A person from anywhere in the world can come to America and become a good American.  This includes the beneficiaries of Deferred Action for Childhood Arrivals (DACA).  We, as Americans, should proceed with caution with the question of legalizing the status of those here in this country illegally.  DACA recipients total about 800,000.  If we legalize them, there will be political pressure to legalize their relatives (parents, siblings, etc.).  If we legalize the relatives, the number will easily be in the millions.  There will be further pressure to give amnesty to just about anyone who is in the country unlawfully, which may total tens of millions.  If we do this – and I believe we should not – we will live in a different country from the one I grew up in.  In the United States, we already have bi-lingual education in some jurisdictions, affirmative action in college admissions, Congressional voting districts designed to guarantee a plurality of Spanish speakers.  We have “press-one-for-English”.  If we accommodate the migrants who did not come here legally, we will have a separate people living here who are unconnected to the founding of the nation.  These are people whose ancestors were not present in significant numbers to fight in the American Revolution, the War of 1812, the Civil War, World War I, or World War II.  They were not here during the Great Depression.  In short, these are people who are absent from our cultural memory.  If they are here in significant numbers, the culture will change, the language we speak will change, and the politics will change.  Given their higher birth rates, they will be in a position to take the majority of leadership positions in our government, and possibly change the direction or the future of the country.

This does not have to happen.

Can the citizens of a nation decide what it wants to be?  Can we as a nation decide who we want in the country?  Can Jamaicans decide that they want an African supermajority?  Can the Japanese decide what kind of population it wants?  Can the people of Iceland decide its ethnic character?  Can Americans decide that we do not want to radically change the demographics of our nation?  Can we do so without charges of being racist, xenophobic, or nativist hurled at us?

The charge of racism is a powerful weapon.  The source of this power is the shame felt by white Americans over the historical mistreatment of blacks.  While the history of this mistreatment is ugly and the resulting shame is appropriate, it is a unique circumstance having to do with whites and blacks.  Africans were brought here against their will.  By the time the U.S. abolished slavery in 1865, Africans in this country had no connection to Africa, especially those whose family members had been here legally since the early 1600s.  Blacks were here to stay.  America owed something to blacks and amended the U.S. Constitution and enacted civil rights laws to correct the situation.  Blacks who descend from slaves in America have a legitimate claim to be in the United States.  Discrimination against blacks on account of being black constitutes what we all know to be racism.  America owes nothing to foreigners who come to live here of their own volition, especially those who enter the country unlawfully.  And if the immigrant is of an ethnicity different from those who have occupied this land since the 1600s, Americans have the legitimate authority to limit the number of people of that ethnic group from entering the country.  The stigma of racism in the U.S. should not apply to its immigration policy.

The United States, like other nations, has a cultural identity.  Religiously, we are a nation where the majority of the population practices some form of Christianity, from which our general sense of right and wrong come, which makes its way into our laws.  Linguistically, we are an English-speaking nation, though many speak different languages at home.  Ethnically, we are an Afro-European nation, though throughout much of American history we’ve had other groups smaller in number.  That other has grown to the point in recent years that it should concern us about how it will change America.

Charlottesville

Here is a joint statement from two former presidents.

 “America must always reject racial bigotry, anti-Semitism, and hatred in all forms.  As we pray for Charlottesville, we are reminded of the fundamental truths recorded by that city’s most prominent citizen in the Declaration of Independence: we are all created equal and endowed by our Creator with unalienable rights.  We know these truths to be everlasting because we have seen the decency and greatness of our country.”

The message of President George H.W. Bush and President George W. Bush is in response to the rally in Charlottesville, Virginia, on August 12, 2017.  The words are nice and make us feel good but the words of our two former leaders miss the point.

The fundamental question is do we believe in the freedom of speech and freedom to peaceably assemble?  These rights are protected under the Constitution’s First Amendment.  Freedom of speech is not enshrined in the Constitution to protect someone’s right to recite nursery rhymes.  It is in place to protect the rights of those engaging potentially offensive commentary.  Similarly, the right to peaceably assemble is in place to protect those members of society who may want gather to protest against something that is popular and this right also protects those who may, themselves, be politically unpopular.

Here are a few things we know:

  • There were a group of Americans, many of whom were white nationalists (and those with similar ideologies), who gathered under the banner of “Unite the Right” to protest the removal of a statue of Confederate General Robert E. Lee
  • This group received a permit to gather
  • The statue of Lee had been located at Emancipation Park, formerly known as Lee Park, and the Unite the Right rally took place at this location
  • Among those who marched in opposition to the rally were Antifa, Black Lives Matter, and the Democratic Socialists of America
  • Those who marched in opposition to Unite the Right had no permit to gather
  • The two groups confronted each other and created a disturbance with violence against the other
  • A young man, who would later be identified as James Fields, a man fascinated by Nazis, drove his car into a crowd of counter-protesters, which resulted in the death of one woman

Many of the white nationalists were armed, largely because they felt that they could not rely on law enforcement to protect them.  The fact that the Unite the Right rally members were armed does not imply that they were not there to peaceably assemble.

To discuss this event is not easy in today’s America.  Discussion of this is loaded with landmines.  Understandably, one does not want to be seen as defending white supremacist or the KKK.  The question, however, is this: Does the Constitution protect those whom we find offensive, evil, or disgusting?  The answer is yes.  For many American however, it is not an unequivocal yes, and for others, the answer appears to be no.  Like the Bushes, media personalities, politicians, and many in the public at large are focused on the shiny object of racism.  As a result, it is difficult for them to focus on what actually happened.  Being against racism is clearly good, but in recent years it has risen to the level of national religion.  Many Americans, whenever they witness racism or racists, reflexively want to tell everyone one within earshot how much they detest it or detest them.  Again, detesting racism is a good thing, especially given some aspects of American history — but are we really willing to shred our Constitution just so that everyone can see that we are good people?

The right for the Unite the Right rally members to assemble peaceably is protected by the First Amendment.  Their speech is protected by the First Amendment.  Most importantly, the members of the rally, themselves, are protected by the First Amendment.  Their ideology does not exempt them from Constitutional protection, however we may feel about the sentiments some among them may spew.  It is worth repeating though that the reason for the rally was to protest the removal the statue of Robert E. Lee and the renaming of the park.

Had the counter-protesters not shown up to confront the Unite the Right members, there would have been no violence.  Fields driving his car into the crowd complicates matters but he likely would not have driven his car into crowd of counter-protesters had the counter-protesters not been there.  The woman who lost her life would likely still be among the living.

The way to deal with such an event is to give them as little attention as possible.  Less attention would send the message that they’re a dying breed and they will have less ability to inspire other to join their cause.  I suspect (and fear) that because of the commotion in Charlottesville, the rally members may gain more support for their cause.

President Trump has received much criticism due to his saying that both sides had a hand in the violence on Saturday, August 12.  Many feel that he is wrong to create an equivalence between the white nationalists on the one side and the coalition of groups that formed the counter-protesters on the other.  I agree that he was wrong.  The lion’s share of the blame rests with the trouble-seeking counter-protesters.

Black Lives

Just over thirty years ago, many of my fellow students were protesting the against the apartheid government in South Africa, which implemented a system of racial segregation and discrimination.  There was a movement at Penn State, as with other colleges and universities nationwide, led by the organization Black Student Coalition Against Racism (BSCAR), to demonstrate against university’s investment holdings in South Africa.  From the building of a shantytown on campus to sit-ins, the students involved were serious about pressuring the administration to divest.  Others in the student body, to show their solidarity with the oppressed blacks in South Africa, refused to drink Coca-Cola due to the soft drink company’s sizable presence in the country’s economy.

Today in Africa, there are a number of countries such as Sudan and Mauritania that have enslaved black populations.  It is true that the enslaved populations are a minority in these countries and it is also true that the governments of these countries are not actively promoting slavery but the slavery that exists cannot be described as insignificant.  Human trafficking in these countries leads to women and, sometimes, young girls being sexually exploited.  Often, those doing the enslaving are Arab Muslims.  The fact that there is slavery in Africa today is rarely mentioned on television news.  Politicians holding or seeking federal offices rarely, if ever, speak about this issue; I have only heard Sarah Palin speak about this.  And I know of no movement on a college or university campus that is devoted to ridding slavery from these countries.

However bad South African apartheid was, it was certainly no worse than slavery.

It appears that black exploitation will be tolerated so long as whites are not the ones causing it.

In 2001, President Bill Clinton, having just left office, was searching for a place for post-presidential foundation office.  After a political misstep, he ended up, with the help of U.S. Representative Charles Rangel (D-NY), finding an office space in Harlem, a neighborhood in the northern part of Manhattan.  Throughout much of the 20th century and the beginning of the 21st, Harlem has had a black majority.  There was lots of excitement that a former president would move his office into this neighborhood.  However, I recall residents being interviewed about the prospect of Bill Clinton moving in and there was one business owner who was not pleased by this very real possibility.  He predicted that property values would go up and that the long-time residents and business owners would be forced to move.  This prediction did not require lots of insight as this was often result of gentrification.  And despite the anticipation of Clinton coming to town, that Harlem business owner was not alone in this prediction.

Gentrification of urban, largely black neighborhoods is not normally welcomed by the residents.  In addition to property values going up, the neighborhood itself would change.  With the nicer restaurants, health clubs, and bicycle paths, comes a highly-educated, higher income, younger, whiter population, and in most cases, is accompanied by the displacement of black residents.  The very character of the place, long-time residents called home for decades, changes into something they do not recognize.  This has taken place in a number of cities in the U.S., including Washington, D.C. and San Francisco.  The word gentrification has a negative connotation; largely due to the resulting displacing of a portion of the existing population, which is almost always a black population.  Despite its benefits, including lower crime rates, gentrification has a bad name in some circles.  There have been protests against gentrification in some cities around the country such as Brooklyn and Los Angeles.  And filmmaker Spike Lee has publicly spoken out against it.

There has been talk for the past decade about “reforming” the U.S. immigration system.  Part of that reformation is what to do with the millions of illegal aliens — mostly from Mexico — already in the country.  Most of the elected officials in the Democratic Party and sizable chunk of the Republican Party want to provide a path to citizenship for those here in the country unlawfully.  Providing citizenship to those illegally in the country will, among other things, cause increased unemployment in low-skilled professions as many of the new citizens will leave the underground economy and find work in the general economy, where there are normal hours with health & retirement benefits.  Among those who will find increased competition (and increased unemployment) will be black Americans, who are disproportionately in low-skilled professions.  Providing citizenship to those illegally in the country will also cause displacement of Americans, mostly black Americans as many formerly illegal aliens will come out of hiding and, with new, better-paying jobs, will move into neighborhoods with better housing.  One reason we can predict this is that this is already happening.  Many once largely black neighborhoods across the country are now less black and more Hispanic.  One hears about this on call-in shows on talk radio or you may hear this in casual conversation with blacks who have seen this displacement.  However, one will not hear about this in the mainstream media, nor will anyone among the black elites discuss this on television or radio.

This displacement trend will no doubt continue if we provide legal status to those in the country illegally.

It appears that black displacement from their communities will be tolerated so long as whites are not the ones causing it.

In recent years, there has been a great deal of focus on police departments and their relationship with black Americans.  This renewed focus is due to deaths of black men as a result of interactions with law enforcement.  The first of these was the death of Trayvon Martin in 2012, who, incidentally, was not killed by a police officer but a night watchman in self-defense.  The second was the death of Michael Brown, who was shot by Officer Darren Wilson, after being attacked by Brown.  The third was Eric Garner, who was not shot but after resisting arrest, was wrestled to the ground by a police officer, after placing Garner in a chokehold; Garner died shortly afterwards, due to having had difficulty breathing from the encounter.  The Black Lives Matter movement came about and gained steam due to these three events.

Black homicide victims are killed by other black civilians over 90% of the time.  They are victims of police shootings about 4% of the time.  This is quite a disparity.  While it is true that the public holds law enforcement to a higher standard, the level of shooting deaths of blacks is not the result of cops.  Black commentators, the press, and, to a large extent, the public are focused on the wrong culprit.  It is blacks that are killing blacks, particularly young black males, at an alarming rate.  White police officers sometimes make mistakes in a split-second decision to shoot a suspect and, perhaps, there are a few rogue police officers who are indifferent to the value of black life, but it is young black men who are making life difficult for their many law-abiding black neighbors.

Few in the media comment on the criminality that exists within black America.

It appears that black murders will be tolerated so long as white are not the ones causing it.

It is time for black Americans to wake up.  It is time for black Americans to stop accepting this level of violence in their communities.  It is time for black Americans to recognize that those who claim that black lives matter do not give a damn about black lives.