Free Market

Fighting Today’s Battles: Protecting Property Rights in Commerce

Through the First Freedom PAC, Jonathan Johnson has been promoting an amendment to state constitutions, including Utah’s, to legally protect a church’s ability to only marry who its clergy desires to, in accordance with the church’s doctrine and practice. We believe that religious belief and practice is an extension of individual liberty, and therefore “religious liberty,” as it’s usually called, deserves the same attention and support.

This battle, however, is in anticipation for a future that has not yet arrived—and, of course, proponents hope it never will. By strengthening state constitutions in this regard, supporters intend for churches to never face legal repercussions for refusing to marry a homosexual couple, for example, should their doctrine or custom lead them to choose not to. Strategizing in anticipation of future battles has its place, but we must also keep an eye on current skirmishes lest they escalate into open conflict. In several states already, discrimination laws have given legal standing for successful lawsuits against owners of businesses who prefer not to offer their goods and services to another individual. This violation of property rights is a current battle in this country that merits a proactive, defensive response in Utah.

Earlier this year, the New Mexico Supreme Court unanimously upheld a lawsuit against a photography studio whose owners declined to offer their services to a homosexual couple. Citing their religious convictions as a basis for their choice, they were soon faced with a legal battle over their discriminatory decision. The Court concluded that the suppression of one’s moral convictions and the denial of one’s property rights has become the “price of citizenship.” Given the commercial aspect, it has become, in many places, the price of doing business.

New Mexico is not an anomaly, as business owners around the nation are finding themselves being prosecuted for their preferences. A Vermont country inn was fined $30,000 because one of its employees turned away a gay couple seeking to hold their wedding reception at the facility, citing the owners’ religious convictions. In Colorado, a judge upheld a gay couple’s lawsuit against the owner of a bakery for not offering them a wedding cake. A florist in Washington was likewise sued for her refusal to offer her services in support of a same-sex ceremony.

We can expect more legal battles along these lines in the near future, perhaps in Utah as well.

While religious rites such as marriage should remain free from legal prosecution for discrimination, so too should property owners be able to determine with whom they wish to associate, and to whom they wish to offer their services. No person is entitled to the goods and services of another. And while certain forms of discrimination are societally frowned upon, and rightly so, there exists no legitimate recourse for the law to punish those who prefer not to offer a cake or photos or other good or service to a person, whatever the reason.

Those who disagree with such discrimination have other methods that they can and already do use, including boycotts, protests, and public shaming. These market-based activities are acceptable as they involve the voluntary decisions and peaceful actions of customers and non-customers alike, rather than exerting political power to arbitrarily fine or otherwise punish the individual. Few business owners would find it in the interest of their business to risk this backlash by discriminating against a person in this way, but those few who wish to take a stand should be legally able to do so.

And the market works. Boycotts may or may not have their intended effect. When Chick-fil-A’s COO Dan Cathy voiced his personal views on “the biblical definition of the family unit,” LGBT activists became upset and rallied to organize a boycott against the fast food chain. Organizations like the Gay and Lesbian Alliance Against Defamation led the boycott effort, which prompted a “boycott of the boycott” dubbed the “Chick-fil-A Appreciation Day” which brought record-breaking sales to the company.

This is as it should be—people should be able to vote with their dollars, and persuasively work to support or oppose the causes and organizations that interest them. We should refuse to allow the heavy arm of government to be used as a club with which political opponents are beaten. In Chick-fil-A’s case, numerous municipal officials around the country threatened to deny the business a building permit in their cities due to the state positions of its executives on the subject of marriage. This is a perversion of the law that should be widely repudiated.

While it’s important to strengthen laws to protect liberty from future threats, it’s arguably as important, if not more so, to defend against more imminent incursions. Our position does not advocate for discrimination, or against LGBT persons, but an affirmation of one’s right to peacefully use his property as he sees fit requires allowing a refusal to exchange goods and services with another person should the property owner so choose. To prohibit and punish this action is to violate the owner’s rights without just cause.

Accordingly, legislation to protect the exercise of this right—even when exercised through a licensed and/or incorporated business—would be an additionally helpful “firewall” against future attack should the expanding effort to sue business owners make its way to Utah.