Civil Liberties in the Modern United States

In the course of discussing current events regarding civil liberties in the USA with my friends in the Vulcan Riders and Owners Club, some thoughts have become clear in my libertarian brain. While I haven't written here in quite some time, I want to record these ideas for posterity.

"All men are created equal....." Thomas Jefferson penned these immortal words in 1776 as a moral framework for a new nation. The U.S. Constitution is the law of the land, but the Declaration of Independence is the spirit. Unfortunately, despite the Founding Fathers' commitment to the freedoms espoused in the Bill of Rights, all people were not equal. Women could not vote until early in the 20th Century. People with different coloured skin started out as slaves and, after this heinous practice was abolished, could be legally segregated in my youth. Even then, people who were drawn to romantically love people of the same sex could still be jailed in many jurisdictions.

But consciousness evolved. Women were allowed to vote. In the 1960's, racial segregation was prohibited nationally by expanding the Bill of Rights to the states via the Incorporation Clause of the 14th Amendment. The Loving decision by the United States Supreme Court allowed a racially mixed couple in Virginia to marry. But homosexuals were still stigmatized both through the law and by social convention.

Finally, the U.S. Federal courts are taking an enlightened stance on gay civil marriage. The patchwork of lower court decisions will be settled once and for all during this term by the USSC and, based on their handling of cases to-date, there is little doubt about how this will play out. Gay folk will be finally able to enjoy all the state granted rights, privileges and responsibilities solemnizing their commitment to each other that heterosexual people have had since the government first stuck its nose into interpersonal relationships.

This should be a great day. However, when one of the downtrodden minorities is finally freed of its shackles, a strange thing happens. Some of them don't want equality, they want superiority. Look at aspects of the feminist movement. Examine the words of Sharpton and Jackson demonstrating a clear chip on their shoulders. The government has gone so far as to identify "special classes" who must be accorded superior rights against discrimination, which are evident in things like Affirmative Action. And now a gay couple in Colorado has brought suit against a Christian baker for not baking them a cake for their wedding, despite the fact that this person of faith sincerely believed that the celebration of their orientation was a sin according to the Bible. What the Bible actually means can be debated, but that is of no matter. This person is entitled to their belief. The government in Colorado found in favour of the couple and punished the baker for not producing something that violated his deeply held religious values.

So we have formerly downtrodden minorities of all types now celebrating that the law is on their side and that they have special privilege. This is a backlash. However, in the case of homosexual practices, there is still a large group pf people who were raised to believe this activity is a sin. They believe the Colorado baker was wronged and his rights were infringed upon. Whether I agree with their premise regarding the sin or not, their right to hold that believe is inviolable. Objective review leads me to conclude that the government would compel the baker to produce something he though was wrong. What does that say for his rights?

Every good backlash typically causes a counter-backlash and we have seen that this week in Indiana. As with 19 other states preceding it, Indiana drew on a 1993 federal statute signed into law by Bill Clinton and they enacted the Religious Freedom Restoration Act. While not naming the homosexual community, it was a driving force motivating conservative states to take this step. Unfortunately, in my opinion, the law is over-broad. It specifies that "a governmental entity may not substantially burden a person's exercise of religion...unless it (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." It sets no limits on the burden. In addition to the case of the baker, people can now claim it is their religious prerogative to discriminate and deny service to all manner of individuals. And remember that we are not just talking about the Christian religion here, nor are we speaking necessarily about gay customers. To compound this, "persons" includes corporations and other entities.

Indiana and the other states have now opened the door to the possibility of rampant discrimination for religious reasons. I am heartened by the public outrage against this but am, at the same time, dismayed about some of the vitriol, and an underlying current in some of the protests that supports the concept of "special classes" of people. Indiana Governor Pence was asked if he would consider adding homosexuals to the list of 'special classes' and he said no.

After significant discussion around this with my learned motorcycling friends, I came to several conclusions, all stemming from Jefferson's immortal words. "All men (persons) are created equal....."

First, the concept of special classes implies special rights. If we are all equal, why should the rights of any individual take precedence over any other. The ideal is that each and every one of us have exactly the same rights. A violation of those rights for any person, regardless of who they are, should be dealt with in the same manner. This, of course, would invalidate modern liberal concepts such as Affirmative Action and Hate Crimes and I believe the nation would be the better for it.

Next, why is the only basis for protecting someone against compulsion a religious one. Free people should be equally able to legally withstand government compulsion regardless of the source of their objection.

Third, I believe all people should be treated equally in commerce. Anyone should be able to sit at a public lunch counter, even if it is privately owned. No ladies sections. No refusal to serve people of colour. One counter, one menu. The only reason for refusing service should be behaviour related, Not following a dress code (shirt and shoes in some cases, jacket and tie in others), incivility towards staff and other patrons, or having caused damage in the past all come to mind. But refuse the service based on what someone has done, not who they are. We have come too far to let this slip away, despite the arguments of some that a private business owner should be able to refuse service for any reason. The belief that bigotry would be stamped out by an enlightened marketplace is overly optimistic based on my observations of human nature.

Fourth, I clarify that the above should relate to commercial situations. In our private lives, we discriminate all the time. That is why some people are friends and others are not. And, as individuals with the right of free association, that is fine. I may not agree with the reason you dislike someone, but I will defend your right to decide for yourself. In addition to individuals, I accept that private clubs should have the ability to decide their membership requirements. I include churches in this private club category.

Now we get to the case of the Colorado baker. This person would have sold the gay couple any of the wares on his shelves. There was no denial of service. But the customer wanted a cake manufactured to celebrate something the baker sincerely disagreed with. This moves it into a different category because it required that something be made. And, as free people, no one should never be compelled to make something they don't want to. For any reason. It could be a cake, wedding photos, a portrait, a speech or whatever.

The Indiana law did not make the distinction between serving and making. Some who voted for it may have thought that was implied, but that isn't the way the system works. If Indiana had spelled out that vendors must serve whatever they normally make to whoever wants it, but can not be compelled to make something they don't agree with regardless of the reason, I would be applauding. But they are only politicians. We can't really expect anything effective from them as they dance to the beat of the ballot box, without any true understanding of what they are really supposed to accomplish.

Thus endeth my rant for the day.