We have to admit, we didn’t really follow all this photographers and bakers and gay wedding controversies as closely as we maybe should’ve. Silly us, we thought this was a personal service case or by extension personal servitude problem, but this somehow is bound up in religion and gay rights. When you get into an argument it may go off the rails if the wrong principles in invoked. A photographer refuses to render his personal photography service to a Gay wedding on religious grounds and loses under a state anti discrimination law. Take Gay and religious freedom out of the case entirely. A asks B to provide a good or service which requires a future meeting of the minds. B refuses by saying they are not a good fit. End of story. Professionals have done this forever. For whatever reason your heart isn’t in it and you can’t provide your best product or service you bow out. That protects both A & B from shoddy or worse outcome. Professionals have always had the right to not take on a client without providing any reason. “Just not a good fit” suffices. Judges most of whom were in private practice know this and should extend this logical choice to everyone.
How can we illustrate this? If we reverse the Gay Vs. Religion wedding photography argument it becomes apparent that this principle should govern. Take this hypothetical. Sally is a Gay Professional Photographer who does among other things, weddings. She also is an ardent feminist. When the very fundamentalist Mosque in her town went before the local zoning board with expansion plans, Sally joined the opposition on grounds that the Sharia Law promoted by the Mosque was demeaning to women. Some time thereafter, Achmed appears at her studio to hire her to photograph his upcoming wedding. He informs her that his desire for her skill as a photographer is so great that he will accept any date and time available, adding that his other wives are great fans. He hands her a head scarf so she won’t feel out-of-place in the same Mosque whose expansion she opposed. Sally refuses and he says “I’ll see you in court.” The next weekend Sally has a sales booth at a local Art Show with her prints displayed with their purchase prices. Achmed shows up and tries to purchase one of her prints. She refuses. Achmed takes legal action against Sally on both the wedding and print purchase refusals. What is the proper l outcome?
Look to Crystal O’Connor, one of the proprietors of Memories Pizza in Walkerton, Indiana to be right on and cast the proper light in these situations. When asked by a reporter whether Memories would do a hypothetical catering of a Gay wedding, she said that they would refuse but gays are always welcome in their establishment. The later involves providing something offered generally on their menu. You make your choice and pay the price. The former requires personal service and a meeting of the minds on how this service is rendered. The Constitution is clear on the principles of Freedom of Association and Involuntary Servitude. To have freedom of association you must also have the right not to associate. Being forced to serve people against your will is in a way you haven’t generally offered is surely involuntary servitude. Think of Paula Dean having a function where Blacks are in-house slave livery. Is that an association and service you would like to compel? Applying Crystal’s very proper logic to our photography hypothetical, we can easily conclude that Sally should be able to refuse the wedding job. Achmed has no right to force her association with a place and people she is unlikely to have a meeting of the minds. On the other hand she should’ve sold Achmed the Print and thanked him for the money. The photos were generally offered to the public for a stated price. Nothing was involved other than an everyday exchange of goods for money. No future meeting of the minds or being forced into an adverse environment is involved. This should delineate whose rights take precedence in any given situation.
Doing it in this way we avoid the ugly and divisive fights that keep bubbling up across the land. Normal commerce would be enhanced without the constant threat of lawsuits. For example, apply these principles to a baker. If the Bakery offers wedding cakes in its catalog or book, anyone should be able to order it but if catalog doesn’t offer something, say the topper you want you need to find it elsewhere. You’re entitled to buy any cake offered but you buy the topper elsewhere. GM offers a complete catalog of cars with plenty of options but if you want to say a Boise sound system and they don’t offer it you have to buy it elsewhere. If by some chance the baker only offers unique custom cakes requiring a future meeting of the minds, the baker can turn you away. A custom car maker doesn’t have to work with someone they think they might not have a meeting of the minds. The same applies to anyone else offering custom services. You simply can’t compel people to associate and come to common goal. Custom means a future meeting of the minds. Caterers, wedding planners and artists broadly would be similarly protected.
As a practical matter, who would really in good faith want to compel people to do something not freely offered? Someone who is forced to provide services to people out of fear of reprisal just might lash out in different ways. This might result in some unwanted results. If you were one of the millions of people who saw the Academy Award winning movie “The Help”, you just might want to be aware of a food providers real feelings before you get a secret special ingredient in your food. As we said these principles protect both sides by promoting a meeting of the minds where possible and alerting parties where that isn’t likely. By bringing the idea of protected classes into these transactions, we actually make them more vulnerable. An artist of Polish descent whose family suffered from the Nazis could turn down a commission to paint a portrait of Hitler without causing a ripple, but a Jewish or Gay artist might be headed to court. All this conflict between protected classes obscures the fundamental rights involved and just leads to action and retaliation. Without this realization, that knock at your door just might be Achmed.