Business Owners Have Rights, Too

In the 303 Creative case before the Supreme Court, Colorado officials assert that all proprietors who open their services to the public have a duty to serve any potential customer on demand. But public accommodation laws do not give customers a general right to be served. Proprietors may terminate a customer’s license and refuse service for any good reason, as long as it is rationally related to the purposes of the business and not an arbitrary or inherently illicit classification, such as race.
The law must stand above the powerful, and we should worry when the law is suspended or disregarded. But where is the law to be found? Most of the law consists of important fictions which live in the minds of lawyers. But what makes the fiction plausible? And how is the law’s benefit to be assessed unless we measure it against fixed, non-conventional, non-fictional standards of justice?
How to achieve a lasting peace in our cultural conflicts is the great difficulty remaining for us. We should not paper over important differences. But, as Andrew Koppelman and Adam MacLeod demonstrate, we can discuss them in a conciliatory spirit of friendship.
Despite Andrew Koppelman’s good-faith efforts, he has not accurately stated important, fundamental convictions of religious liberty proponents concerning the character of moral reasoning and the nature of law.
Andrew Koppelman surely is correct that a same-sex couple must find it humiliating and embarrassing to be turned away from a wedding vendor. He is also right that the costs of using public law to remedy such indignities are significant, especially for the conscientious owners whose livelihoods are at stake. So, what to do? What we need is an institution that is capable of resolving these fraught disputes on a case-by-case basis. Fortunately, the common law provides such institutions.
Hobbes’ thin conception of natural law cannot sustain all the activities of a fully flourishing community, but it does appeal to those who live in fear of losing their basic security. Many people are possessed by that fear today, as many were in Hobbes’ time. But we have much to lose if the Hobbesian view of law prevails.
No one can say with precision how many people this virus will infect or kill. Predictions are difficult. But we know some things about ourselves, so we can venture to say what this unusual moment will reveal about us.
A major source of political division in America is the difference between those who believe in essences and those who follow intersectionality. Those who hold theories of intersectionality believe that human identity and much of reality itself is a construct that they can revise, not an objective reality that we can all know. This limits the possibility of political discourse: we cannot reason together if one side no longer believes in the capacity of reason to discern what is true.
America’s relations with China should proceed from the recognition that the Chinese government is lawless. China flouts the rule of law, not occasionally or incidentally but characteristically, because the government understands itself as the source of law and unconstrained by it. The problem of China reminds us of the deeper laws that all nations must respect and that determine whether or not our positive laws are legally just.
Among the universal, fundamental rights every person enjoys is the right to leave his nation of origin. Yet the right to leave does not entail the right to enter a specific nation.
Kansas’s Supreme Court randomly festooned its recent decision on abortion with impressive terms, without making the slightest effort to learn the terms’ meanings. The court identifies “common law” with judicial opinions and thus shoehorns innovative judicial decisions into its discussion of “natural rights.”
Common-law marriage can never entirely be abolished. The duties of marital relations are generated and vested by the actions of the parties themselves.
Understood as an expression of the common law commitments on which it was built, our Constitution still supplies common terms in which we might re-transform our civic discourse into something rational and productive. The second in a two-part series.
Our Constitution is not just positive law, stipulated and contingent on political will. American constitutions do incorporate pre-positive law, often expressly. And that law is neither mere text, nor axioms, nor political ideals. The first in a two-part series.
Though Legislated Rights is primarily written for legal philosophers, it bears important lessons for all who work to secure human rights in law. It challenges conventional views about the supremacy of courts in specifying and vindicating rights, arguing that legislatures can best accomplish this task.
When we lie to ourselves about the moral status of other human beings, we not only unjustly injure other people, we also injure ourselves and our culture. We transform ourselves into a people who believe the lie. The costs of self-deception are internal and reflexive as well as external and consequential.
Though our political institutions are designed to be secular and non-sectarian, our laws rest on Christian ideas about what we owe each other as human beings made in the image and likeness of God.
State officials and judges cannot comply with the Supreme Court’s ruling in Masterpiece simply by articulating facially neutral reasons for decisions that punish people for acting on the understanding that marriage is a man-woman union.
Social conservatives are right to oppose proposed legislation that would ban therapy to help those experiencing unwanted same-sex attraction or gender identity confusion. But they’re wrong to say that the bill would ban books.
Same-sex parenting advocates are calling on states’ rights to define the legal relationship between parent and child. What they seek is the power to write the record of a child’s origins and to determine a fundamental aspect of a child’s identity.
Just as governors, abortionists, and sexual-identity activists enjoy legal protection for their property rights, so do religious business owners.
In their new book, Ryan T. Anderson and Sherif Girgis make a strong case for pluralism and ordered liberty, while John Corvino drafts a blueprint for a comprehensive despotism that would consume the preconditions and legal safeguards for ordered liberty. Part two of a two-part review essay.
The implications of John Corvino, Ryan T. Anderson, Sherif Girgis’s well-argued debate reach far beyond the latest round in the culture wars. They go to the foundations of the American experiment in ordered liberty. Part one of a two-part review essay.
A new book highlights the shared anthropology and social thought of Abraham Kuyper and Pope Leo XIII without glossing over their differences.