The Supreme court heard recently the oral arguments in the case of the Colorado cake baker who declined to bake a cake for a gay wedding. Reading the briefs and the summaries of oral arguments, it occurred to me that the Court is facing a very difficult decision here. But that difficulty is entirely the Court's creation because of its own precedent.
The Court has declined for a long time to invalidate certain precedents when they become unworkable, choosing instead to try and craft little rules of thumb and obscure sub-interpretations that history has shown to create the proverbial Pandora's box.
Did any of the Justices ruling in Griswold intend to create a right to abortion? I don't think so. But by discovering in the "penumbras and emanations" a right to privacy, and by construing that right a certain way, we gained essentially a constitutional right to murder, albeit under limited conditions.
Likewise, the Hobby Lobby case had the Court craft the novel idea of a "closely held" business being entitled to a right of religious conviction that exempted them from Obamacare requirements. What is "closely held"? How big can a business be before it loses the right to determine its employment policies? Naturally, the Court punted on these points. Left completely uncertain is what businesses have which rights when it comes to Obamacare mandates-- or any other federal legislation that conflicts with employer's preferred policies. What if Hobby Lobby wasn't privately held? How do you measure the sincerity of the religious beliefs of the owners? How senior must someone be to speak for the company?
Examples of such unresolved and perhaps unresolvable questions abound, drawn from many cases that all point to the same conclusion: the Court is weaving a web of impossibility for itself and for all of us as Americans.
Where the Court erred is in its construct of "public access." Civil Rights legislation introduced the idea that a business open to the general public is offering a public accommodation. This is a fallacy, though. While a business may be open to the public, the conduct of business is on the private level. In other words, private business transactions are conducted with parties drawn from the general public. But these are not "public" transactions, they are private. As such, businesses do not accommodate the public at large, they accommodate individuals drawn from the public at large. This is a subtle but profound distinction.
As such, the correct governing principle is mutual consent. Are both parties agreeable to the transaction? Any legislation that grants a "civil right" to a transaction can only give that right after first having taken away the right of free association from another party. In the case of the Colorado baker, the "right" to have a cake baked for your wedding can only come from having taken away the baker's right to consent--or not consent-- to a transaction.
Having made the baker's consent secondary to whether a belief is "sincere" or whether a cake is "speech" is all nonsense. Sincerity cannot be measured as a matter of law, and it's untenable to place that in the law.
Moreover, the Baker's right at stake is not a right of "expression" either-- whether that is religious expression or "speech." Rather, it is the right of free association, which is even more fundamental than any form of expression. Everyone accepts that there must be limits on what you may say (i.e. "fighting words" or "fire in a crowded theater") and that there may even be limits on religious exercise (i.e., you cannot sacrifice children even if you sincerely believe it is pleased in your religion).
But who accepts the idea that you may not freely choose your friends? That you may not freely choose which civic groups you will belong to or avoid? That you may not exercise sole discretion over which job offer you will accept? Or which college you will attend?
The right of free association is perhaps the most fundamental of all rights. And it has been severely undermined in the name of "rights" that the Court has created from whole cloth.
I'm not expecting the Court to have the courage to undo the absurd doctrine of public access laws. But it will be interesting to see how it attempts to square the circle.