Jim Fedako makes some great points in a Mises Daily article last month about Elaine Photography v. Willock — the recent case involving Elaine Huguenin’s refusal to photograph the commitment ceremony of a lesbian couple in Arizona. He writes,
One implication of a positive right to service from a business is the derivative positive right to quality service. So, it is not just that Elaine Photography must take pictures of the commitment ceremony, it is that they must take quality pictures, as well.
I had a similar thought when reading about this case a few months ago. If vendors like Elaine Huguenin are forced to service the demands of anyone who comes through their doors (which is what the court declared), isn’t it expected that they will treat such customers with the same quality service they’d treat any other customer? Is this something the courts are willing to enforce? If so, how can such an issue be judged fairly? Who is to determine whether a vendor (especially service providers like photographers) treated all clients with the same level of quality?
But there is yet another angle to this issue, aside from the issue above and issues of religious liberty, that I haven’t seen covered elsewhere.
Consider that not all exchange relationships are as simple as that between the Huguenins (vendor) and the lesbian couple (customer). In their case, an established vendor was approached by a customer with cash in hand. But what about those business relationships that involve an exchange of products or services only–without a money medium? In many instances, the “customer-vendor” dichotomy is anything but clear.
For example, consider grocer Bob who, seeking software applications to streamline his store’s internal operations, finds developer John, who is looking for a company to pilot test his new software applications. Instead of exchanging cash for products and/or services, Bob and John merely exchange services: Bob gets to use new software applications and John uses Bob’s user feedback to optimize his applications before selling them on the market. No cash changes hands, yet exchange takes place and both parties benefit.
In this case, who is the customer and who is the vendor? The answer is that neither is only a customer or only a vendor, but both are simply parties to the exchange. Or, if you insist, both are customers and both are vendors. I’m not sure what such parties would be called in the legal literature, but I am sure that arrangements like this are very common in the corporate world–my company is currently involved in one similar to my example above.
Here’s why this matters…
When the Court recognizes a customer’s alleged right to be serviced by the vendor of their choosing, they elevate the status of one party to an exchange (customer) over the other (vendor). While the Court’s reasoning might seem like a nice thing to do and a way to help oppressed social groups, such reasoning can not consistently apply to anything more complicated than a basic customer-vendor transaction.
For example, what if grocer Bob refused to enter into my example arrangement above on the grounds that developer John was engaged in some activity he considered unethical? Would developer John have legal recourse to force grocer Bob to contract with him and engage in this non-cash transaction? Of course not. But throw a wrench into the mix. Imagine that developer John had planned to pay some cash, in addition to free software applications, to grocer Bob for his user feedback. Is developer John now a “customer” and should he be allowed to sue Bob for rejecting his proposal? Still no. John may be paying cash, but that’s not enough to make him the “customer” and Bob the “vendor.” In the end, they are both engaged in this partnership to benefit themselves.
My point here is that traditional cash “customers” and “vendors” do the same thing. Buying coffee from Starbucks does not benefit the customer at the expense of Starbucks or vice versa. Both subjectively benefit as a result of the exchange, otherwise it would not have happened. A coffee buyer does business with Starbucks for the same reason grocer Bob and developer John do business–to profit.
What I’m getting at is that once the customer-vendor distinction is understood for what it really is–mere words created to make our conversations about certain exchange relationships easier–the faulty premises behind rulings like Huguenin case are revealed. For if advocates of such rulings are consistent in their application of the law without creating arbitrary distinctions between vendors, customers and everything in between, vendors should have the right to sue all customers who do not patron their stores because of some moral disagreement with the store’s values. Starbucks could sue all those who do not buy their coffee for religious reasons. Walmart could sue all those who did not shop there on account of their low wages. Family Christian Bookstores could sue all who don’t shop there out of opposition to Christianity. The list never ends.
I understand that the Huguenin case involves religious freedom and an allegedly “oppressed” social group and my three examples in the paragraph above do not, but ultimately anything can become a religious or social justice issue. Mormons don’t drink coffee. Low wages is, for many, a matter of social justice. Christian books are, of course, explicitly religious products.
Elaine Photography v. Willock and other similar cases are anything but black and white. They are about far more than gay rights, religious freedom or free speech. Indeed, trying them involves an audit of the very logic with which we think about economic relationships and human action — an audit I’m afraid many aren’t willing to take seriously if it jeopardizes the progress of their shallow notions about “social justice.”
(After writing this post, I discovered another article by the same Jim Fedako saying essentially the same thing. While his analysis is conciser, I think my analogy paints the picture better for those unaccustomed to thinking deeply about economic relationships or unfamiliar with economic jargon. But I encourage you to read his piece anyways.)