Gays (particularly gay marriage)
In the case of David Mullins and Charlie Craig vs. Masterpiece Cakeshop (Colorado, 2014), both Colorado’s Civil Rights Commission (DORA) and the ACLU found the following ideas compelling (quoted from their websites):
“What should have been a happy day for us turned into a humiliating and dehumanizing experience because of the way we were treated,” said Mullins. “No one should ever have to walk into a store and wonder if they will be turned away just because of who they are.”
“Religious freedom is undoubtedly an important American value, but so is the right to be treated equally under the law free from discrimination,” said Amanda C. Goad, staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project. “Everyone is free to believe what they want, but businesses like Masterpiece Cakeshop cannot treat some customers differently than others based on who they are as people.”
Elsewhere on this present website, I have argued that the “being vs. behavior” distinction has been repeatedly conflated in discussions about homosexuality and gay marriage. However, in this present article, I would like to focus that distinction clearly upon the legally-prevailing arguments above.
“turned away just because of who they are”
Let us start with this line, because it strongly influenced the decision of both the civil court and the DORA decision.
First and most obviously, Mullins and Craig were not “turned away.” In point of fact, Masterpiece did not refuse service to them in general. Had Mullins and Craig entered to order cupcakes, for example, they would not have been refused service “just because of who they were” or for any other reason. Instead, Masterpiece refused to provide a wedding cake that was explicitly for a gay wedding. That leads to the next point.
Second, and equally obviously, Mullins and Craig were not denied a wedding cake “just because of who they were.” They were denied a wedding cake because the owner of Masterpiece, being a practicing Christian, did not wish to be complicit in a particular behavior. And that point leads directly to the being/behavior distinction.
Masterpiece did nothing to condemn or refuse service to Mullins and Craig qua humans or qua homosexuals. Masterpiece in fact did nothing to condemn even the behavior in which Mullins and Craig wished to engage. Masterpiece simply stated that it did not wish to be complicit in a particular behavior, namely a gay wedding.
To make this point starkly clear, let us consider some questions:
1) Is it possible to be a heterosexual and never once engage in any sexual behavior or marriage?
2) Is it possible to be a homosexual and never once engage in any sexual behavior or marriage?
3) Is it possible to be a human being and never once engage in any sexual behavior or marriage?
The answer to all three of these questions is obviously, “Yes!” But this indicates that sexual behavior or marriage fails to distinguish between heterosexuals, homosexuals, and human beings. A person can be any of the above without behaving in any way that was the distinguishing aspect of the Masterpiece Cakeshop case.
To make the above point clearer, let us now turn the distinction on its head in the following questions:
1) Is it possible to know whether a person is heterosexual, homosexual, or merely human solely on the basis of knowing that the person is engaging in sexual behavior?
2) Is it possible to know whether a person is heterosexual, homosexual, or merely human solely on the basis of knowing that the person is getting married?
Obviously, the answer to both of the above questions is, “No!” But this indicates that engaging in sexual behavior or marriage does not distinguish between heterosexuals, homosexuals, and human beings. A person can behave sexually (or not) or get married (or not), and this behavior does not distinguish between a “protected class” and just being a human in the way it was claimed in the Masterpiece Cakeshop case.
In short, Mullins and Craig were not denied a wedding cake from a Christian cake shop “just because of who they were.” They were denied a wedding cake from a Christian cake shop because of what they wanted to do.
With the DORA ruling and the prevailing civil suit, Colorado now finds itself with a legal precedent establishing that there is a “protected class” of behavior rather than just being! This case establishes not a mere negative right of homosexuals to be unmolested in their pursuit of marriage; instead, this case establishes a positive right of homosexuals to be actively helped along in their pursuit of marriage. No longer can a person or business-owner decline to actively contribute to a particular behavior; with this case it has been established that all people must comply upon demand with whatever complicity in this behavior a homosexual desires.
When Christians are forced to be complicit in behaviors that they find odious and morally sinful, the State has gone beyond its legitimate charter into a flat-out establishment of religion (or the lack thereof). Absent compulsion to engage in particular behavior, the Christian cake shop could have found itself in no moral conflict to merely “serve” a homosexual qua homosexual.
By contrast, no Christian need be put off by serving the basic human needs of any person qua human being, regardless of that human’s sexual orientation! And that fact is entirely in harmony with the fact that homosexuals are now a “protected class” in the United States of America. But the vast majority of Christians have very legitimate (and first amendment protected) grounds for declining to align with certain (by their lights) immoral behaviors. By conflating the being/behavior distinction, the State of Colorado has (unnecessarily) denied first amendment protection to Masterpiece Cakeshop in favor of (unnecessarily) protecting a (non-existent) positive right to engage in a particular behavior. The right of homosexuals to marry is at most a negative right, but it has now been established as a positive right, which introduces a conflict of rights that need not exist.
I repeat: Mullins and Craig were not denied a wedding cake from a Christian cake shop “just because of who they were.” They were denied a wedding cake from a Christian cake shop because of what they wanted to do.
“businesses like Masterpiece Cakeshop cannot treat some customers differently than others based on who they are as people”
Again the claim is repeated that Mullins and Craig were denied some positive right on the basis of “who they are as people.” But this is in fact not the basis upon which Masterpiece Cakeshop took its stand. The cake shop merely declined to be complicit in their desired behavior.
They were not denied any goods or services due to their personhood. They were not even denied any goods or services due to their being homosexual. As argued above, neither their personhood nor their homosexuality (the being thereof) was condemned nor threatened, as a human being is a person and can be a homosexual in the complete absence of any particular sexual behavior or marriage.
Mullins and Craig were denied a wedding cake that was explicitly part of a gay wedding, which is a behavior rather than a being. And even though the behavior of gay marriage is now “legal,” its legality (like virtually all laws) establishes a merely negative right to be unmolested in one’s behaving in accordance with the law. For the State or Federal governments to treat gay marriage as a positive right would be to demand that all people upon demand actively help and be complicit in that activity, and that interpretation of its “protected status” certainly does create an entirely unnecessary conflict between the first amendment and this newly-minted gay right. That conflict literally evaporates if the right is properly interpreted as a negative rather than positive right.
Again, Masterpiece Cakeshop’s stance was not a function of “who [Mullins and Craig] are as people.” It was a function of what Mullins and Craig wanted the cake shop to be complicit in as a behavior.
“humiliating and dehumanizing experience”
Mullins and Craig were not “dehumanized.” Period. This loaded language is nothing more than emotive, and it is fallaciously emotive.
In point of fact, there is exactly zero necessary correlation between the act of marriage and the being of human. Human rights are those that are inalienable, those that define human dignity in virtue of the fact that a human is not truly considered or treated as human in the absence of these rights.
The (negative) right to life is the classic example. Obviously we do not think that animals have this right, as we consistently and broadly-across-species kill them for all sorts of our human purposes.
Marriage acts as no such defining right. A human that is unmarried is no less human!
And Mullins and Craig were not even denied the (negative) right to marry! They simply found a Christian cake shop that did not wish to be complicit in their desired behavior (due to the owner’s legitimate and constitutionally-protected belief that such behavior was immoral). They could have immediately and easily gotten a wedding cake at virtually any other cake shop, meaning that Masterpiece Cakeshop’s demurring did not count as even a hardship to them or as any significant hurdle to their engaging in their desired behavior!
Thus, it is patently ridiculous to claim that Mullins and Craig were “dehumanized” on the basis that a (single) Christian cake shop declined to provide them a wedding cake!
Mullins and Craig could have gone elsewhere
This point was argued by Masterpiece Cakeshop’s defense in both the civil and criminal cases, and in both cases the response was: “They should not have had to. They had a right.”
I believe that I have very cogently argued above that they should have had to go elsewhere for their wedding cake! Whatever right they had to their behavior was at most a negative right, meaning that they should remain unmolested in their pursuit of their desired behavior. Being unmolested in their pursuing their desired behavior is not the same thing as a positive right that requires all people to actively help them engage in their desired behavior!
To make this distinction clearer, the three explicitly named human rights in our Declaration of Independence are: Life, liberty, and the pursuit of happiness. All of these are negative rights, which is to say that if you leave me alone, having no relation to me whatsoever, you have entirely satisfied my negative rights. You may not actively take my life. You may not actively enslave, constrain, kidnap, or otherwise physically keep me from engaging in lawful behaviors. And you may not actively decide for me what “happiness” is or constrain me from any lawful way I may seek whatever it means to me.
Presuming that Mullins and Craig actually possessed a negative right to gay marriage, Masterpiece Cakeshop by doing nothing (by simply declining to participate) in fact did nothing to constrain that negative right. As in the case of all negative rights, the mere doing of nothing entirely satisfies all negative rights. And Masterpiece Cakeshop only wanted to be left alone in its doing of nothing to actively help Mullins and Craig in their negative right to pursue happiness as they lawfully saw fit.
To make the foregoing paragraph clearer, consider the doing of nothing as it regards the right to the pursuit of happiness. By doing nothing, I entirely satisfy your right to the pursuit of happiness. I impede you in no way by my doing nothing. You remain free to seek happiness however (lawfully) you see fit. I merely do not actively help you on your way as I do nothing. But your right to the pursuit of happiness is negative; it does not entitle you to anybody helping you on your way.
Here is why: Negative rights are entirely satisfied with no expenditure of resources nor commitments (moral, ideological, or otherwise) on the part of others. By contrast, positive rights can only be satisfied by the expenditure of resources and commitments on the part of others. The satisfaction of negative rights cost others nothing, while the satisfaction of positive rights necessarily cost others something.
Another example is smoking. As an adult, you have a negative right to smoke. You do not have a positive right to smoke. You have no right to demand that I purchase cigarettes for you, light a cigarette for you, or in any other way positively help you to smoke. If I entirely leave you alone, you are free to pursue the purchase of cigarettes, the lighting of one, and the smoking of one. But you do not get to insist that I help you on your way to lung cancer!
Thus, the distinction between negative and positive rights can be summarized this way: In the case of negative rights, by definition you have the right to say, “Leave me alone in this.” However, in the case of positive rights, by definition you have the right to say, “Help me accomplish this.”
Mullins and Craig attempted (and the State of Colorado helped them) to impose an entirely mistaken positive right upon Masterpiece Cakeshop, when at most they had a negative right to be left alone in their pursuit of marriage.
As a final example of this principle, let’s say that you try to impose your right of pursuit of happiness on me. You come to me and say, “Happiness for me is a 60-inch LED Hi-Def TV set, which I cannot afford. I now assume my right of the pursuit of happiness to be a positive right, and I now insist that you (among all possible people) shall be the one to satisfy that positive right. I thank you in advance.”
In this example, it is obvious that I have no duty to satisfy your right. It costs me something, and I almost certainly will not agree that your happiness is depended upon your possession of your desired TV set. I refuse to be complicit in your attempted behavior, and I deny that you have any positive right to demand my complicity!
The exact parallel exists in the case of Mullins and Craig in their pursuit of marriage. They approached Masterpiece Cakeshop and stated: “We have a positive right to marriage, and you are going to help us toward that goal via providing a wedding cake.”
Like me with your TV set, Masterpiece Cakeshop in effect replied, “Sorry, but no. We decline to contribute to your desired behavior, although you are welcome to go elsewhere and find somebody else that would like to contribute.”
Like me with your TV set, my refusal does not violate any actual right of yours; you remain entirely free to “go elsewhere” and see if you can find somebody who would like to contribute to your “happiness.”
In fact, the “go elsewhere” argument is precisely the legitimate response to anybody who attempts to impose a positive right where they only actually possess a negative one!
Mullins and Craig had every (negative) right to pursue marriage, in fact recently established by law. They had every (negative) right to shop around their desires for a wedding cake to as many different shops as they wished to find the one that would both provide them a cake and provide them one that would delight them. But they had no (positive) right to demand that any particular cake shop contribute to their wedding or be complicit with them in their desired behavior.
So, the assertion that they could/should have simply gone elsewhere is exactly the right answer (and should have been an adequate defense). But the courts’ conflation of negative and positive rights produced an entirely unnecessary conflict between this newly-minted “civil right” of this gay couple and the first amendment right of Masterpiece Cakeshop.
Had the courts been thinking correctly about rights, it would have been trivially easy for them to recognize the fundamental distinctions of types of rights upon which this nation was founded, and the courts should have found that Mullins and Craig were neither “dehumanized” nor “discriminated against” and that Mullins and Craig should thus have just kept shopping until they found a cake shop willing to positively engage with them in their particular pursuit of happiness.
Guns (particularly open-carry)
In the State of Colorado, open-carry is a legally-established negative right. This right flows out of the right of self-defense that flows out of the right to life. This right has been acknowledge by the second amendment and upheld by the United States Supreme Court as an individual right.
Type and history of the right
Just as gay marriage has been legally established as a negative right that is explicitly recognized by the State of Colorado, the negative right to open-carry firearms is explicitly recognized by the State of Colorado.
Gay marriage is a behavior rather than a being, and the same is true of open-carry.
Gay marriage does not define a person qua human being and neither does open-carry. Both behaviors are entirely dispensable to the definition of humanness, personhood, and all other “protected classes” in terms of “civil rights.”
Interestingly, the constitution itself explicitly mentions and protects the right to bear arms, while it nowhere mentions the right to gay marriage. Furthermore, a clear logical flow of implications leads from fundamental and inalienable human rights and the right to bear arms, while no such logical flow exists for gay marriage (or marriage at all, for that matter). It is worth explicating that flow in the case of the right to bear firearms:
Being human > right to life > right to self-defense > right to the appropriate means of defense against likely threats > right to the bearing of firearms.
This logical chain enjoys a multi-hundred-year history of recognition and even presumption in our founding documents and the surrounding documents of our founders. Again, no such recognition nor presumption exists in the case of gay marriage.
Thus, if anything, the negative right to open-carry is far more strongly established and recognized throughout our nation’s history than is gay marriage.
As it is a negative right, for you to entirely satisfy my right to open-carry, you need do simply nothing; simply do not actively infringe upon or deny me that right, and you have “done” everything (exactly nothing) to satisfy my right. I do not require your complicit behavior in any sense. I do not demand that you do, contribute, or commit to anything. Merely leave me unmolested, and you have entirely satisfied my right.
And, just as the pursuit of gay marriage is legally protected as a behavior, my pursuit of self-defense via open-carry is legally protected as a behavior. When I open-carry, I behave in a legally-protected way to pursue my beliefs, just as a gay couple behaves in a legally-protected way to pursue their beliefs. I emphasize: in both cases, it is a behavior that is legally-protected rather than a being of anything. And, as noted above, if either behavior can be logically linked to the being of anything, it is the bearing of firearms rather than gay marriage (or any marriage, for that matter).
Rights of private business owners
The “sameness” between the right to open-carry and the right to gay marriage, however, come entirely apart in the sight of Colorado State law, and this disparity in legal protections has been made plain via the case of Mullins and Craig vs. Masterpiece Cakeshop.
In the Masterpiece Cakeshop case, it was established that the (mistakenly presumed) positive right of Mullins and Craig to gay marriage trumped the desire of the cake shop owner to not participate in any way in that wedding. The cake shop was told: “It is not sufficient that you merely do nothing to infringe the couple’s right; you must actively help them in their pursuit of this particular behavior.”
By contrast, a person who open-carries a firearm into an business establishment that has posted a “no firearms” sign is not demanding that the business actively help engage in that behavior. The business can simply do nothing whatsoever, and the open-carrying patron is thereby left alone to behave as he/she sees fit.
So, the gay marriage right, when presumed to be a positive right, should have to get over a far higher legal bar in order to force complicit behavior compared to an open-carrying patron who simply desired to be left alone and does not demand actively complicit behavior. Masterpiece Cakeshop could not simply “turn a blind eye” to the gay couple’s desire to pursue gay marriage; they were told that they must actively engage in that pursuit. By contrast, a business owner need only “turn a blind eye” to an open-carrier’s desire to pursue self-defense; the open-carrier is not demanding active engagement of any sort!
However, as is now established, the pursuit of gay marriage cannot be denied in any sense by a private business owner, while the right of a private business owner to literally refuse service to an open-carrying patron is upheld by the law.
In the State of Colorado, no business may post any sort of sign saying anything like: “We reserve the right to refuse any service that would further the pursuit of a gay marriage.” However, Colorado encourages business to post signs saying something like, “We reserve the right to refuse service to patrons open-carrying firearms,” or, “No guns allowed,” which is an even more sweeping infringement of a negative right.
Thus, Colorado has achieved a flat-out schizophrenia regarding the rights of private business owners in their response to the legally-established rights of patrons. Worse, Colorado has now established that a gay marriage is a positive right, whereby gay patrons can demand active help in their pursuit of their particular behaviors, while Colorado has also established that open-carrying is merely a negative right and that businesses can actively infringe on that right by refusing all service to their open-carrying patrons. Thus, businesses may actively do something to infringe the rights of gun-carriers, while they are disallowed to even do nothing in the case of gay couples.
Open-carriers can just go elsewhere
The exact same justification for rights-infringement is issued by businesses that wish to uphold their own “no guns” preference as was issued by Masterpiece Cakeshop regarding their own (religiously-grounded) no-gay-marriage preference.
In the case of the no-guns preference, business assert: “Concealed carry would keep us from seeing the gun, so we could ignore it; so patrons should concealed carry,” or, “There are lots of other comparable businesses that do not have a no-gun preference; so patrons should take their business to such places.”
Both perspectives are unsustainable.
There are many people that are legally allowed to open-carry a firearm who cannot qualify for a concealed-carry permit. Should those people be disallowed from exercising their constitutionally-guaranteed right of self-defense? Well, the law says, “No!” Particularly in the State of Colorado, open-carry is entirely legal and legitimate; there is no permit required to carry a firearm in the State, so a business demanding that patrons concealed-carry is imposing a much higher bar upon patrons than does the State.
Furthermore, such businesses are really adopting a veiled “don’t ask, don’t tell” policy. In point of fact, if a concealed-carry patron’s gun accidentally gets glimpsed by another patron, the business might well tell the firearm-carrier to leave the premises on the basis of the “no gun” policy. The signs invariably say “no guns” or “no firearms allowed,” rather than “no open-carrying of firearms.” So, technically, such businesses are not encouraging patrons to concealed-carry as an alternative to open-carry. They are merely not actively searching all patrons to find concealed firearms. In point of fact, all such businesses reserve the “right” to refuse service to (and actively eject) all gun-carrying patrons, concealed-carry or open-carry.
Finally, for all of the reasons why the State of Colorado denied the “go elsewhere” claim of Masterpiece Cakeshop, businesses should be denied the “go elsewhere” claim of businesses that prefer no guns on their premises.
The behavior of gay marriage has been established as a right in Colorado, a right that requires that businesses actively help patrons pursue that desire! However, the behavior of carrying a firearm that is in every respect akin to the right of gay marriage somehow does not require businesses to even not infringe it, much less help in its pursuit!
For the courts to find a parallel between gay marriage (as now contemplated) and firearms-carrying, businesses should have to actively help gun carriers pursue their desired behavior: “Oh, you want to pursue self-defense in my store? Wonderful! I not only recognize your right, but I must (and am happy to) actively help you pursue it! I stock all calibers of ammunition alongside my cupcakes here. Can I offer you some nice .40 caliber here? Do you have a rifle at home? I have ammo for that as well. In what way can I actively help you pursue your gun-toting desires?”
It is just as ridiculous to assert that Masterpiece Cakeshop (or any other business) had some duty to provide every desired help toward the pursuit of gay marriage.
You might respond, “But Masterpiece Cakeshop was in business to provide wedding cakes, not ammunition.”
Yes, but business that are in the business of offering guns and ammo are also allowed by the State to refuse service to open-carrying patrons. Their anti-gun signs are just as legally binding!
And I am not arguing that businesses should have to actively help the pursuit of a particular behavior! In fact, I am arguing the opposite. I am arguing that businesses should at most be bound to not violate negative rights! I am arguing that treating gay marriage like a positive right is fraught with absurdities!
Thus, I am arguing that not only did Masterpiece Cakeshop not violate the negative right of Mullins and Craig, I am arguing that businesses should be legally bound to do nothing to thereby uphold the negative right of open-carrier to carry firearms in compliance with the law.
Every argument that prevailed against Masterpiece Cakeshop should also prevail against businesses that refuse service to or actively eject from their place of business those patrons who open-carry firearms.
An open-carrier who is denied service or ejected from a place of business is exactly as “dehumanized” and “discriminated against” as was Mullins and Craig.
In fact, the right of open-carry is a “nearer” right to basic human rights than is the right to gay marriage.
When Colorado upholds a supposed positive right to gay marriage while allowing businesses (and the entire County of Denver) to discriminate against the negative right of open-carrying citizens, its laws have become fundamentally schizophrenic, and it thereby fails to afford its citizens equal protection under the law.