Why Supporting Free Association For Cake Bakers Doesn’t License Discrimination Against Sarah Sanders

Why Supporting Free Association For Cake Bakers Doesn’t License Discrimination Against Sarah Sanders

A restauranteur most certainly cannot refuse service to anyone she doesn't like. Not in this country.
Sean Ross Callaghan
By

The staff of a little restaurant called The Red Hen in Lexington, Virginia, humiliated White House Press Secretary Sarah Huckabee Sanders this weekend. They sounded the alarm when she and her family showed up for dinner, and the owner asked them to leave, “babbling” about the restaurant’s “standards” of compassion and cooperation. With a Facebook post announcing her eviction from the restaurant, the staff cemented her humiliation.

Many seem to have quickly assumed the owner, Stephanie Wilkinson, has a right to refuse service to anyone at her own restaurant. Perhaps between libertarians who enshrine the freedom to do what one pleases, more traditional conservatives who enshrine the freedom to do what one pleases with the business one owns, and modern liberals who demand that everything from sex to dinner be political statements subject to public rebuke, there is no one left to notice that assertion is actually totally off base. A restauranteur most certainly cannot refuse service to anyone she doesn’t like. Not in this country.

Take a prospective diner who is black. If Wilkinson doesn’t like such a man because he is black, she has three choices under federal law: she can sell her restaurant, face punishment, or undertake sufficient “compassion and cooperation” to serve him a meal. In such case, neither the Fifth Amendment’s right to property nor the Thirteenth Amendment’s right to freedom from involuntary servitude is a “‘right’ to select … guests as [she] sees fit, free from governmental regulation.” (Heart of Atlanta Motel v. United States, 379 U.S. 241, 226, 229 (1964).)

The same goes for not liking a guest who is Muslim because he is Muslim, or one who is Christian because he is Christian. The reason Congress may regulate such discrimination is its power under the Commerce and Necessary and Proper clauses, which “extends to activities of retail establishments, including restaurants, [that] directly or indirectly burden or obstruct interstate commerce.” (Katzenbach v. McClung, 379 U.S. 294, 302 (1964).)

Just as with racial and religious discrimination, if Congress were ever to determine that political discrimination burdens interstate commerce, the Supreme Court could plausibly decide that prohibiting political discrimination is within the powers granted to Congress under the Commerce and Necessary and Proper clauses. Under the Court’s modern expansion of the Commerce Clause to domestic activity, even a so-called farm-to-table restaurant such as The Red Hen serving only locally sourced food away from an interstate highway might be corralled by a hypothetical federal anti-political discrimination law.

Political discrimination probably already burdens interstate commerce. It will probably soon start to burden it even more. Reflecting upon a growing national discord, Francis Wilkinson warned last week in an article for Bloomberg that if liberals are disappointed in the next election, they will leverage their “great deal of cultural, academic[,] and economic heft” and “divorce their … economy from Trumpism and from their fellow Americans who support it,” “give[ing] up on Alabama and Mississippi … [and] on Kansas and Nebraska.”

It’s already beginning to happen. In an interview for Wilkinson’s Bloomberg article, Thomas Schaller, a liberal political scientist, argues that “we’re at the beginning of a soft civil war.” Schaller “[doesn’t] know if the country gets out of it whole.”  All civil wars — even soft ones — burden interstate commerce.

But some would-be civil warriors who praise Stephanie Wilkinson for humiliating Sanders have set sail in a pond-deep legal analogy. Relying on a Supreme Court case just decided this Term, Masterpiece Cakeshop v. Colorado Civil Rights Commission, they argue that if a religious baker cannot be compelled to bake a custom cake for a gay wedding, then a liberal restaurateur cannot be compelled to serve dinner to a Trumpist. The freedom to discriminate, goes the argument, must imply the freedom to discriminate against the discriminators.

Masterpiece Cakeshop concerns the clause of the First Amendment guaranteeing the free exercise of religion. It therefore serves as limited authority for a challenge to a hypothetical federal law prohibiting political discrimination. Such a case would perhaps involve other provisions of the First Amendment but would principally involve the Commerce and the Necessary and Proper clauses.

Masterpiece Cakeshop does, however, encompass a moral intuition about what makes discrimination unjust. The intuition is a maxim by which to judge the behavior of others, but it is also a lamppost under which we may judge our own. One’s strong conviction that his discrimination is just is precisely the feature of discrimination that strongly suggests the opposite. To be free from the awful human wont to discriminate unjustly is to be free from the prejudices that inform such a strong conviction. And to be free from such prejudices requires an open mind.

A mind cannot throw its barn doors open wide lest it lose all its principles. But, where our minds must remain open is where we share common affection. Our love of God, country, and family is a start. Our desire to eat is another. When we refuse to break bread with one another, we close our minds completely; when we close our minds completely to our fellow citizens, we fray our national unity, burden interstate commerce, and endanger our common emotional health. We also kick people out of restaurants. Men “living their convictions” did so during Jim Crow. Stephanie Wilkinson, “living her convictions,” did so in our time. Those convictions are vice — not virtue.

To this end, far from agreeing with Stephanie Wilkinson that a person’s perceived moral unacceptability justifies discriminating against her, the Masterpiece Cakeshop court condemned the Colorado Civil Rights Commission for personally disparaging the religious baker. The more perceived moral unacceptability, the less justified the disparagement.

So, the Masterpiece Cakeshop court especially condemned one commissioner for describing the baker’s faith as “one of the most despicable pieces of rhetoric that people can use.” Drawing a clear parallel to the repeated and recent outbursts of caustic bile launched not just at the Trump administration but on Trumpists of all sorts, the court condemned that same commissioner for going “so far as to compare [the baker’s] invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.” The heated accusations against he who is discriminated against make the discrimination less justified — not more. So too with Mrs. Sanders.

Jesus dined with tax collectors. The Red Hen can serve a press secretary.

Sean Ross Callaghan is an attorney and a former law clerk for a U.S. District Court judge. He served in the Treasury Department, the Justice Department, and in the DC Attorney General's office as an assistant attorney general. Follow him on Twitter @seanrcallaghan.

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