Two recent cases illustrate the utter confusion people have in determining the propriety of some people discriminating against persons who are members of categories grounded in what civil rights attorneys call “suspect bases of classification.” When, and to whom, does the “equal protection” clause of the 14th Amendment apply? When a privately owned bakery in Oregon refused to bake a wedding cake for a gay couple, an administrative agency came down upon the business with heavy fines. That the bakery should have had its refusal legally respected is grounded in the simple fact that, being a private business, it is not engaged in the “state action” that is a prerequisite for an “equal protection” analysis. If private parties are not free to select those with whom to associate or share in their property, there is no substance to personal liberty.
By contrast, the county clerk in Kentucky who refuses to issue marriage licenses to gay couples on the grounds that to do so would violate her religious principles, is – by virtue of her acting as an official of the state – in violation of the First Amendment prohibition of establishing a state religion.
It is the essence of a society based on respect privately owned property that individuals may act – or refuse to act – with others on any basis they choose. No matter how intolerant a bakery owner may be in refusing to contract with any category of other persons, the property principle protects their right to so discriminate. This is not the case where the person claiming such a right of refusal is an agent of the state, discriminating on grounds prohibited to the state.
7:09 pm on September 1, 2015
