The Sweet Cakes case: Let the market give discrimination its just desserts. | Professor Ninos Malek
Anybody who refers to the United States as a free enterprise, free market, or capitalist economy is wrong.
Real liberty and freedom mean that individuals, including business owners, may choose to associate with whomever they wish based on whatever criteria they wish. This is not the case in the United States.
The Oregon-based Sweet Cakes bakery has been ordered to pay $135,000 in damages for refusing to bake a wedding cake for a lesbian couple for their ceremony.
The couple had filed a complaint with the Oregon Bureau of Labor and Industries in 2013 after the bakery refused them, and then legal proceedings ensued.
In December of 2017, the Oregon State Court of Appeals upheld the decision to force the bakery to pay the couple for damages. According to Brad Avakian, Oregon’s labor commissioner, “Today’s ruling sends a strong signal that Oregon remains open to all.… Within Oregon’s public accommodations law is the basic principles of human decency that every person, regardless of their sexual orientation or gender identity, has the freedom to fully participate in society.”
Far from ensuring freedom in America, this ruling is a direct blow to liberty. The Christian bakery owners believe that marriage should only exist between a man and woman, which is their religious conviction. Many other people might believe these bakers’ approach to religion is ridiculous or evil. However, what these bakery owners did was run their own business according to their own convictions.
The argument against them is that if they are open for business, they should serve everyone. But why should the lesbian couple — or anyone else — have a right to purchase the labor of these bakery owners?
A legitimate function of government is to protect and enforce contracts and property rights. The problem with the Oregon case is that it was never the couples’ right to purchase the private property (i.e., cake) of the bakers. Nobody owesanybody anything other than what two or more parties agree upon in a voluntary contract.
Government must allow business owners to make their own decisions.
It is interesting that when it comes to our personal relationships, the government recognizes our legal right and freedom to discriminate against individuals based on sex, race, sexual orientation, religion, ethnicity, and physical attractiveness. This is not so when we begin to examine certain commercial relationships.
If I were applying for a job but refused to take the job because I found out my supervisor had a particular characteristic, identified with a particular sexual orientation, or practiced a particular religion that bothered me, I could legally indulge in my prejudice and refuse employment. On the other hand, if the employer determined that there was something disagreeable about me in that capacity and discriminated against me, I could sue the employer.
Similarly, if you prefer not to shop at a certain bakery because you object to their religion, you can do so. But if the shop refuses your business because of your religion (or sexual orientation), the government may step in.
So, currently, individuals have the legally recognized right to discriminate in their personal lives, and as consumers and workers.
The free market view is that individuals who own businesses should have the same right. Just as private individuals can choose whom they allow into their homes based on whatever criteria they decide, private business owners should be recognized as having the same right.
But government itself must not discriminate.
The same would not be true if a business was receiving taxpayer subsidies: all types of people are forced to pay taxes to the government, and those business subsidies are ultimately being extracted from taxpayers.
Furthermore, it would be against the free market philosophy if the government prevented a certain group from engaging in commercial transactions or if the government ordered business owners to discriminate against certain groups.
Throughout American history, we have had immoral government laws that enforced segregation. Even the most close-minded, intolerant, prejudiced person who claims to believe in liberty and freedom would have to be against those laws, even if the laws personally benefited him or discriminated against people he hated. The difference is that the government enforced the discrimination. The true supporter of liberty and freedom believes decisions regarding business and association should not be mandated by a government.
So if the government prevented a lesbian couple from opening a bakery, then a supporter of liberty, even a Christian supporter of liberty who regarded homosexual behavior as sinful, would have to be against that — because now it would be the government interfering in the market.
The free market system would admittedly allow private businesses to discriminate, but this would come at a cost — lost business. Nothing is free, including discrimination. For instance, I personally would not patronize a business that had racist policies or other policies that personally offend me. Any store that had such policies would lose me as a customer. But that should be my choice, rather than a government-enforced choice.
In other words, those who believe in liberty believe we should let the market — individuals’ voluntary buying and abstinence from buying — support or punish businesses that discriminate.
When an individual supports free markets and liberty, and thus supports the right of bakery owners to decide what weddings to sell cakes for, this does not mean the believer in liberty is mean-spirited or “intolerant.” What it does mean is that the supporter of liberty believes the government should be a referee and not a player in the game, and that liberty belongs to all individuals, including business owners.
Article by Bryan Caplan, an economics professor at George Mason University
Originally published at LearnLiberty.org.