Bureaucratic command and control: The new ‘civil rights’

The Supreme Court in Washington, D.C., is seen on Friday, October 1, 2021.
Greg Nash

The Supreme Court recently announced Tuesday it will hear arguments in a Colorado case involving a website designer, Lorie Smith, who values the freedom to decline work she doesn’t want to do. The rub: Bureaucrats at the Colorado Civil Rights Commission want to eliminate that freedom in the name of “civil rights.”

The case, 303 Creative LLC v. Elenis, is being labeled yet another effort to reconcile religious liberty with public accommodation laws that prohibit discrimination based on sexual orientation. Liberty and public accommodation laws, however, cannot be reconciled. Public accommodation laws are incompatible with individual liberty because they violate individual liberty. It’s time for such laws to go away. 

Forty-five states prohibit businesses from discrimination based on race, gender, ancestry and religion. About half the states, including Colorado, have additional prohibitions against discrimination based on sexual orientation and gender identity. These state laws mirror Title II of the 1964 Civil Rights Act, which prohibits “discrimination on the ground of race, color, religion or national origin” within places the law declares to be “public accommodations.”

Modern public accommodation and anti-discrimination laws are often referred to as “civil rights” legislation. Yet they have little to do with actual civil rights and much to do with giving those in government the power to control the liberty and private property of citizens. 

Civil rights are rights prescribed by law that provide the mechanisms by which citizens participate in the government they created. Examples of civil rights legislation include laws determining when and where elections will be held, the design and use of ballots, and voting qualifications. Trial by jury, the right to sue in civil courts, protection from warrantless searches and seizures, and the right to stand for election to public office also are civil rights.

Laws should create and protect equal civil rights for all citizens — and in the United States, they do. Forcing someone to make something they don’t want to make, do something they don’t want to do, or trade with someone with whom they don’t want to trade is no “civil right.”

Imagine that web designers, cake bakers and other businesses were to close shop tomorrow. Web designers could recommend that you learn HTML, bakers could tell you to mix and bake your own eggs, flour and sugar, and other business owners could simply display a CLOSED sign and leave you to learn new skills or do without. If these services are “civil rights,” should the government have the power to force the business owners to stay open? Of course not.

Regardless of your sexual preferences, religious beliefs, skin color, or gender identity, others refusing to create something or to trade with you does not violate your civil rights. You’re still protected by law in your right to vote, to be secure in your home and possessions, and to a trial by jury if a prosecutor accuses you of a crime.

Whether a property owner wants his, her, or their property to be a “public accommodation” should be the property owner’s decision; it should be an individual choice, not a matter of legislation and bureaucratic enforcement. Individual freedom is the freedom to make one’s own choices, including to whom one offers trades, whether to accept or decline offers from others, and how to use one’s own property. 

The laws should offer equal protection for the equal individual rights of each and every citizen. The legal distinction between “customers,” who allegedly have special civil rights in the marketplace, and business owners who have special obligations because they are deemed “public accommodations,” is false. 

Every purchase is, or ought to be, a mutually voluntary exchange. A web designer, for example, has a computer and design skills. Someone else has cash. The computer, skills and cash are all forms of private property. For an exchange to be legitimate, the owner of the computer and design skills must freely agree to trade his or her skills for the other’s cash, and the cash owner must agree to trade his or her cash for the designer’s skills. If either disagrees, no sale ought to happen. And it matters not a whit how either person feels about any deity, romantic or sexual preferences, or anyone’s ancestry or skin color — period.

If we believe in individual freedom, private property, and equal protection of the laws, then it’s time for state and federal public accommodation laws to go away, as well as the unelected bureaucrats who smother freedom under the false flag of “civil rights.”

Thomas L. Krannawitter, Ph.D., is co-founder of The Vino & Veritas Society. He is a former vice president of the Claremont Institute and has taught at Claremont McKenna College and Hillsdale College. He is the author of several books. Follow him on Twitter @TomKrannawitter.

Tags Anti-discrimination law Civil liberties Civil rights in the United States Equal Protection Clause Lorie Smith

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