Bakery owners Aaron and Melissa Klein of Sweet Cakes in Oregon are being forced to pay $150k after they refused to bake a cake for a gay wedding. The owners were found guilty of violating the state’s anti-discrimination law, the Oregon Equality Act of 2007.
The Oregon Board of Labor assessed the egregious fine in an amount that is sure to bankrupt the couple, whose religious beliefs required them to abstain from participating in a gay wedding ceremony in such a way.
The couple’s moral defense of their position is that they have a right under the First Amendment not to design a lesbian couple’s cake. Their legal defense is specifically that the law of Oregon at the time banned gay marriage, although the Supreme Court later overturned such laws.
The Daily Signal reported that ironically a gay evangelical Christian is helping raise funds to try to offer relief to the family. Matt Stolhandske created a petition at Rally.org and has raised over $5,000, though the bakers have refused the money. The couple will not know the full financial impact of the decision until March 10th.
This is a sad case, and demonstrates a sincere problem in the strategy for liberty amongst libertarians. While there are no libertarians who don’t believe that gay couples shouldn’t be allowed to freely contract with one another, as straight couples do, the answer to the problem truly is that the government shouldn’t be in the marriage business whatsoever. But seeing as how it already is, then it only seems right that gay couples should absolutely be allowed to marry.
The problem comes in with the fact that the gay community, being mostly liberal democrat, is going to attempt to legislate their own version of morality to counter conservatives who have been attempting to do the same thing. It makes sense why homosexual couples would attempt to use the law to punish those who disagree with them, even if to a libertarian it is wrong both ethically and morally. The question for libertarians is, how can we have a successful strategy to give gay couples the right to get married, while protecting the religious freedoms and private property rights of business owners and churches who have a right to their views as well?
Consider this problem: The Civil Rights Act of 1964 mandated that private business owners must serve blacks, as well as whites. This was the famous “racism at lunch counters” example. Most people, conservatives included (though not all libertarians) argue that the legislation was overall a good thing, since it mostly dealt with discrimination in government. Senator Rand Paul famously backtracked and stated this after he was caught questioning that provision (Title II) in a famous post-election interview with Rachel Maddow.
Libertarians argue that private property owners, business owners, have a right to refuse service to anyone at any time. But the overwhelming public sentiment at the time, and the fact that racism was prevalent and widely practiced to discriminate, caused the legislation to be passed.
Now, consider this in a modern context.
Homosexual couples see themselves in the same way as those blacks at lunch counters. They believe that by a business refusing them service on account of their sexual preferences, that they are being discriminated against. They are right. They are. But the question is, should it be illegal to refuse service to anyone for such a basis? If you believe in religious freedom, and private property rights, then yes. But remember, if you believe that blacks should have a right to sit at lunch counters, then you should also believe that gays should have a right to a gay wedding cake. When you argue against private property rights of business owners to discriminate based on race, the camel’s nose is then under the tent for gay couples to demand services as well.
Libertarian’s best strategy to solve these problems, in my opinion, is not to push for gay marriage, but to push for a separation of marriage and state.