The problem is public accommodation

Media pundits like to pitch cases like Hitching Post as attacks on religious liberty. Religious freedom issues are great for ratings, after all. They rile people up.

For those who don’t know, the owners of Hitching Post Wedding Chapel were recently ordered to conduct a same-sex wedding ceremony despite their religious objection. If they refuse, they face jail time and up to $1,000 in fines for every day they continue to refuse.

But cases like Hitching Post aren’t really issues of religious freedom—at least not directly, or in terms of how the law is written. They’re about economic freedom. They have to do with the doctrine of “public accommodation,” by which the government can force businesses to service particular types of customers. As the law stands, any business open to the public must service customers regardless of race, disability, sex, sexual orientation. Business owners’ beliefs and opinions, including their religious objections, don’t matter.

LBJ signs the Civil Rights Act of 1964

President Lyndon Johnson signs the Civil Rights Act of 1964 as Martin Luther King, Jr., and others, look on.

That’s the fundamental problem. It started with the Civil Rights Act of 1964.

Some might counter that Hitching Post’s objection is rooted in religion and not the racism targeted by the Civil Rights Act. Therefore, it’s not really an issue of public accommodation akin to a white hotel owner refusing black customers. It’s a matter of being forced to behave in ways contrary to an intimately-held religious belief.

But racism could conceivably have religious roots, too. In fact, it unfortunately did for centuries. Until those who care about their liberties are willing to put aside their fear of social and political ostracism and admit that the letter of the Civil Rights Act itself is a problem, they’ll never get anywhere. Slowly but surely, their respect for “political correctness”—even if unenthusiastic—will leave them, us, with nothing left to defend.

Remember Elaine Huguenin? She lost her case last year after refusing to photograph a lesbian wedding ceremony on the grounds of public accommodation. Rulings like this will happen over and over again because they’re the only ruling consistent with the public accommodation doctrine. Expect nothing different until that doctrine is rigorously challenged.

I have a longer, more formal piece on public accommodation being published tomorrow. I’ll post a link here when it’s available.

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