Why Can't You Refuse Services?

It's not government's job to make everything in life fair.

There are so many contentious issues competing for headlines that it's hard to keep track.  Few of them reach the Supreme Court, however, so an issue that does automatically becomes more interesting.

The Court has agreed to take up the case of Jack Phillips, owner of the Masterpiece Cakeshop in Lakewood, Colorado, a Christian cake decorator who refused to make a cake for a gay wedding.  The state of Colorado levied a huge fine on Mr. Phillips for denying service to a bona fide member of the public.

Their stand was weakened when a Christian asked a gay cake maker to make a cake with Bible verses which criticized sodomy.

Last year, Bill Jack filed a discrimination complaint against Denver's Azucar Bakery, claiming the owner violated his religious rights by refusing to decorate Bible-shaped cakes with the words "God hates sin. Psalm 45:7" and "Homosexuality is a detestable sin. Leviticus 18:22." He also wanted one cake to feature an image of two men holding hands in front of a cross with a red "X" overlaid on the image.

The Colorado Civil Rights Commission rejected Jack's claim early this week, ruling that the bakery owner rejected his message because it violated an established policy of refusing to decorate cakes with "derogatory language and imagery," not because of his faith.

The definition of "derogatory language and imagery" is purely in the eye of the beholder, of course, so this reading of Colorado law allows the Commission members to rule in any manner that they desire.  On the bright side, the bigoted Colorado Civil Rights Commission has done us all the service of formally documenting what should have been a self-evident truth: the purpose of modern civil rights commissions is to enforce politically-correct orthodoxy specifically against religiously-devout Christians, no more and no less.

The Commission's position that a customer's wants must always be satisfied regardless of the seller's view - unless, of course, the customer's wants are politically incorrect - is deeply and profoundly at odds with contract law and traditional jurisprudence.

An enforceable contract occurs when one party makes an offer and the other party accepts the offer.  Courts have ruled that advertisements are not offers, they are invitations to begin negotiations.

This makes practical sense.  If advertisements were offers, someone who saw an advertisement for "Delicious Apples" could say: "I accept your offer to sell me delicious apples, and if they aren't delicious, I'll sue!" No one could conduct business or advertise products under these circumstances.

Thus, when Mr Phillips put a sign in his window advertising cakes for sale, this was not an enforceable offer.  It was merely an invitation to start negotiations which might or might not lead to an offer being accepted by both parties.  Put simply, an advertisement is not a legal offer by the seller, it's a request for an offer from a potential customer.

When someone advertises a product for sale and another party offers the sum named in the ad, the advertiser is under no obligation to accept the would-be customer's offer regardless of what was said in the advertisement.  The Commission's assertion that Mr. Phillips' advertisements were offers which he could not refuse is at odds with centuries of commercial practice.  These politically-correct hacks are sacrificing our commercial system on the altar of leftism.

Let's set aside this transparent leftist bigotry, though, and discuss first principles: Should government have the fundamental power to force people to provide services to others that they do not wish to provide or to force people to associate with persons with whom they'd rather not associate?

"Freedom of association" has been contentious for far longer than baking cakes.  When the Civil Rights Act was being debated in 1968, some senators were opposed to the housing section of the law which would force homeowners to sell or rent property to any buyer who could afford it.  This was particularly contentious in the case of someone who owned a duplex and would be forced to live with any tenant who rented the other half of their home.  Opposing lawmakers argued that the federal government lacked jurisdiction under the Constitution to force landlords to rent their homes to people they did not like.

Senate leader Everett Dirksen (R-IL) called this provision "absolutely unconstitutional."  He argued that housing purchases were inherently local issues over which the federal government lacked jurisdiction.  "If you can tell me what interstate commerce is involved in selling or renting a house fixed to the soil, or where there is federal jurisdiction, I'll go out and eat the chimney off the house," he argued.

This was a bipartisan position.  Senator John Sparkman (D-AL) argued that the bill "clearly violates the right to free use and disposal of property."  To this day, Senator Rand Paul argues that the Civil Rights Act is unconstitutional for this reason.

There's No Escape From Politics

When Mr. Trump unexpectedly won the 2016 presidential election, a number of lefty performing artists publicly said that they wouldn't perform at his inauguration because his politics were unacceptable to them.  These lefties claim the right to refuse to deliver their customary publicly-offered services to a customer whose political beliefs violate their consciences.

Commercial law is on their side because they are under no obligation to accept Mr. Trump's offer to pay them to perform.  Logically, isn't this the exact same privilege that both the Christian cake baker and the homosexual cake baker wanted - the right to follow their own respective beliefs and refuse to serve a customer whose beliefs they are convinced are unacceptable?

No matter what we think about cake bakers or landlords, there are many examples of the same sort of problem.  Pro-aborts have criticized Catholic hospitals for refusing to perform abortions.  They claim that since abortions are legal, any medical practitioner who refuses to perform an abortion has no right to practice medicine at all.  They are saying that any member of any profession must fulfill any legal request by any member of the public regardless of his or her beliefs, a position which is founded on politics and not on law.

This raises other problems, though: even the most ferocious feminist admits that a doctor shouldn't perform a procedure for which the doctor isn't properly qualified.  This would appear to offer an "out" for both doctors and hospitals: simply don't take the med-school class in "How to do an abortion," and don't hire any doctors that have.

How long do you think this "solution" would last, though?  Should a doctor who isn't certified for abortions be permitted to practice in any other area of medicine?  Would being forced to attend abortion classes or to bake an offensive cake or to rent an apartment at below-market rates be a form of involuntary servitude?

The ACLU is suing the state of Michigan to deny Christian adoption agencies the right to refuse to place babies with gay couples.

In Dumont v. Lyon, the ACLU cites Michigan's "practice of allowing state-contracted, taxpayer-funded child placing agencies to disqualify prospective families headed by same-sex couples based on agencies' religious beliefs." That violates the establishment clause of the First Amendment and the equal protection clause of the Fourteenth Amendment, the ACLU contends.

They're asserting that because gay marriage is permitted by the law of the land, any private organization that refuses to uphold gay marriage should be shut down.

We saw this in 2006 when Catholic Charities, one of the nation's oldest adoption agencies, closed its doors in Boston rather than violate its conscience. Since then, agencies in San Francisco and Washington D.C. and, statewide, in Illinois have been forced to shutter their child-placement services as well.

The clearly-revealed goal is to declare that, although the Constitution permits anyone to hold any religious beliefs they desire, it's illegal to practice religious beliefs that conflict with state policy.  This is a stunning new departure in American law.

In stark contrast, court cases have established the principle that although the use of the hallucinogenic drug peyote for recreational purposes is illegal and can lead to large fines and jail time, its use in religious observances by the Native Indian Church is permitted.  Allowing religious exceptions to general rules is a longstanding practice - conscientious objectors are permitted to avoid military service, for example.  When it comes to skipping out on military service or using illegal drugs, the desire to practice a deeply-held religious belief is sufficient to override laws that apply to everyone else, so long as it's not a conservative Christian belief, apparently.

But the peyote has to come from somewhere, like anything else.  We aren't sure where the Native Indian Church gets theirs - perhaps they grow it themselves - but there aren't very many of them so supplying their needs is not a big problem.

What about more widely-desired rights?  We've discussed how feminists are trying to force hospitals to perform abortions.  Suppose that a Colorado merchant is opposed to selling marijuana, which is legal in that state but illegal at the federal level.  Would a Colorado merchant be permitted to refuse to stock and sell cannabis?  What is the difference between these two hotly debated issues?

Pharmacists of Conscience Need Not Apply

Massachusetts requires registered pharmacists to fulfill any and all legal prescriptions regardless of their personal beliefs.  This law was passed because some pharmacists regard abortion as murder and refused to fulfill prescriptions for the "morning after" pill which prevents pregnancy by inducing abortions.  Enough would-be abortive mothers had their prescriptions rejected to lobby to get this law passed in response.

Today, in Massachusetts, you flatly can't be a pharmacist if your conscience won't permit you to give out pills that cause abortions.  You must either violate your own conscience or be driven from the profession you spent years studying to qualify for - or, most likely, just move out of state, which means nobody in Massachusetts can get a prescription from you of any kind.

On the other hand, what about simply not stocking the pill?  Even in Massachusetts, it is not illegal for a pharmacist to say, "I'm sorry, I can't fill that prescription, I don't have any.  Try my competitor down the street."

Here's another complication: The FDA has made the morning-after pill an over the counter drug which can be purchased without a prescription.  This is not absurd because it has to be taken within 72 hours of intercourse to be effective, and getting a prescription could lead to delays after a Friday night assignation.  It's expensive, however, so some pharmacies prefer not to have it out on shelves where it's easy to steal, pills being small.

Some argue that keeping the pill out of sight and forcing embarrassed teens to ask for it violates their rights to privacy even though pharmacists are covered by strict HIPAA privacy regulations.

Should pharmacies be forced to stock the drug?  If so, should they be forced to stock it on open shelves where it's easy to steal?  OTC drugs aren't covered by insurance, so insurance won't pay for its use without a prescription.  That adds another contention to the discussion because Obamacare regulations said that health insurance had to provide all legal forms of birth control with no co-pay at all.

We believe that a pharmacist should be able to follow his or her own conscience, provided that other pharmacists are available to fulfill the prescription.  This is always the case, since we live in a capitalist society with many pharmacies owned by different people with many different points of view.

Many pro-lifers who sincerely believe that abortion is murder because it "stops a beating heart" operate "crisis pregnancy centers" which try to persuade pregnant women to give birth instead of getting an abortion.  If they can't persuade a woman, however, they don't lock her in the basement until she gives birth - they reluctantly say "Goodbye," and let her go to an abortionist.

Not content with this, the State of California has passed a law requiring crisis pregnancy centers to advertise the availability of abortion centers while they try to persuade women to give birth instead.

Can the state force pro-lifers to advocate abortions which they regard as murder of an unborn human?  One court has said that this is OK and that pregnancy counselors who refuse to promote abortions must get out of the business.  This, too, may end up before the Supreme Court.

Stickier and Stickier

The State of Texas has a "futile care law" which allows a doctor to refuse medical services which the doctor believes to be futile regardless of the patient's wishes or ability to pay.

... The law permits doctors who disagree with patient choices to bring the matter before a hospital bioethics committee-made up of people he or she knows well, who have been trained by bio-ethicists, and who all share the institutional culture. That's hardly an objective circumstance.

After holding meetings in which all parties to the dispute are heard, the bioethics committee has the legal power to turn thumbs down to wanted care - even though it is working. Once that happens, the patient must find another hospital within 10 days - even if another doctor is willing to take over the case - or the treatment will be stopped unilaterally.

This law allows medical organizations to deny services to a solvent member of the public if a doctor can convince a panel that the services would be "futile."  It was intended to permit practitioners to stop treating old people whose quality of life doesn't justify the cost of treatment, but it also allows doctors to follow their beliefs when deciding to offer or withhold services.

On the face of it, this seems like a law conservatives should oppose - we don't want doctors having the power to decide when to pull the plug on patients against their wishes.  But notice the fine print - the doctor is required to give 10 days notice and to allow the patient to transfer to a different hospital which will perform the requested services.

How is this different from allowing cake bakers or singers to decide to withhold or offer their services based on their beliefs?  In both cases, the spurned customer has every right and ability to find another vendor who'll provide the desired services, and in a nation of 300 million people, this doesn't seem like an unacceptably heavy burden.

A Texas judge upheld the futility law:

"It would be a big mistake to throw out a statute in place for nearly 20 years that seems to be working pretty well," Burke said in rejecting the plaintiff's request for summary judgment declaring the law unconstitutional. "If you think the law doesn't provide sufficient protection for patients, go to the Legislature to remedy it."

This judge has quite properly tossed the problem back to the legislature where it belongs.

Medicine is a particularly sticky issue because of our fad-based medical insurance laws.  Some years back, a woman was denied a bone marrow transplant to treat her breast cancer.  She died, and sympathetic legislators required medical insurance companies to pay for bone marrow transplants for breast cancer.  This expensive treatment was later found to be ineffective, but the laws requiring insurance coverage are still on the books.

Suppose woman insisted that a doctor perform a bone marrow transplant to treat her breast cancer.  Could the doctor refuse to perform a procedure which the doctor believed would be ineffective?  If that is the doctor's honest belief, both the traditional Hippocratic oath and the modern oaths of medical associations forbid the doctor to perform the treatment.

That's what the Texas "futile care law" permits - the doctor may allow his conscience to guide what he does and does not do.  Should a sick person be able to compel a doctor to perform a procedure regardless of the doctor's beliefs, rather than having to find some other doctor whose beliefs are more compatible?  Mr. Trump,. after all, had to find alternative performers who were willing to perform for him.

What About Vaccines?

Vaccines present the opposite problem, and from both ends of the political spectrum.  Vaccines are generally available, and some are required by law in various states, but some people don't want to have their children vaccinated.   Do parents have the right to refuse to vaccinate their children because of their individual consciences, or do states have the right to force parents to vaccinate all children regardless of their beliefs?  If children grow up unvaccinated, do adults have the right to refuse vaccination?  Should vaccination against certain diseases be a condition of entry into the United States?  The recent measles epidemic at Disney these parks was caused by foreign visitors.

The problem of coercion becomes messier when it comes to mental illness.  Pretty much everybody including the National Rifle Association agrees that mentally ill or suicidal people shouldn't have access to firearms regardless of the Second Amendment and that they should receive medical treatment as needed, but the devil is in the details.  As with vaccines, the only question in mental illness is, "Who has the authority to force someone to take a medication the person is vehemently and violently opposed to taking?"  If you can answer that, all else falls into place.

Years ago, the state of New Hampshire found that wealthy persons were being disproportionately declared senile and incompetent because their heirs wanted to control their money.  The law was changed:  A court can appoint a guardian for a supposedly incompetent individual, but the court must also appoint an attorney whose task is to argue as vehemently as possible that the person is competent.  If this argument fails before a judge, the guardian is appointed with power to ask that medication be forcibly administered and to spend the person's money as the guardian sees fit.

Is this enough due process?  Whom would you trust to order that police or other state actors force you take medicine you don't want to take, or to remove your guns, or spend your money in ways you didn't approve?

At some point, more issues regarding denied or forced medical and other services will be headed for the Supreme Court.  Let's hope that the court rules in favor of wide protections for individual conscience and personal liberty - and that we all take the time to properly understand what's being debated before staking out a position!

Will Offensicht is a staff writer for Scragged.com and an internationally published author by a different name.  Read other Scragged.com articles by Will Offensicht or other articles on Law.
Reader Comments

Exceptional article, well reasoned, thanks for publishing.

November 14, 2017 5:37 PM
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