Saturday, September 16, 2017
Here's my contribution to the SCOTUSblog symposium on the upcoming Masterpiece Cakeshop case. Here is a bit:
. . . One of the (several) purposes of public-accommodations laws is to ensure efficient and equal access to housing, employment, education, opportunities – to citizenship and civil society. These laws limit the rights of property, contract, action and association to make sure that some people’s exercise of these rights does not prevent others from living and thriving in that middle space – the “public square” – between the purely private and public spheres. The scope and reach of public-accommodations laws are reasonably contested, but most people agree that access to commerce and employment should not be denied or complicated for invidious reasons or because of irrelevant considerations. No one’s admission to civil society should be conditioned on being or becoming someone else.
That said, benefits, opportunities, access and permission regularly come with conditions attached. They are parts and terms of the deal, the contract, the job. Student-loan funds, government research grants, occupational and professional licenses, public-works contracts, tax-exempt status, school accreditation, and on and on all (for better or worse) come trailing strings, regulations, requirements and constraints.
This is not surprising. Still, the power to condition access, or charge for admission, can – like all powers – be abused. The “rules of the road” should not be inefficient, irrational, irrelevant or unfair. It is fine to require passing a driving test as a condition for a driver’s license; it would be strange, though, to require passing a swimming test; and it would be wrong to require an oath of loyalty to the Bureau of Motor Vehicles clerk’s political party. It is fine to impose reporting requirements and privacy-protecting rules on hospitals receiving Medicare funds, but it is unnecessary and unjust to require those hospitals to provide elective abortions.
So, what about Jack Phillips and his Masterpiece Cakeshop? It is unremarkably and uncontroversially “part of the deal” that if he wants to be in the business of cake creation, he can be expected, and required, to pay employees at least a particular wage, to submit his facility and equipment to regular health-and-safety inspections, and to keep records for tax purposes. What’s more, almost everyone agrees that part of the price of admission to his vocation in the marketplace is that he not invidiously or irrationally discriminate in ways that deny or complicate others’ access. Can he be required, though – should he be required, is it necessary for him to be required – to say something he thinks is not true, to disavow what he believes or to act expressively in violation of his conscience? . . .