Losing our Freedom

Came across a link to this story last night while browsing The Volokh Conspiracy:

SEATTLE -- The American Civil Liberties Union of Washington today announced an agreement settling a discrimination complaint filed by a gay man against a local business that refused to print invitations to his wedding with his same-sex partner. Under the agreement, the business owner has apologized for her actions and agreed to abide by Seattle’s anti-discrimination law in the future....

In August 2003, Seattle resident Tom Butts contacted Starfish Creative Invitations to hire them to print invitations for his upcoming wedding ceremony with Scott Carter in Vancouver, British Columbia. Butts liked samples of the company’s work he had seen and liked the fact that it was a local business. But Starfish, a Seattle company, refused to provide their services because, in the proprietor’s words, she believes “homosexuality is wrong” and same-sex weddings are “against her belief system.”

The business owner’s refusal violated Seattle’s Open Housing Public Accommodations Ordinance, which protects an individual’s right to purchase products and services without regard to sexual orientation. With legal representation by the ACLU, Butts filed a complaint with Seattle’s Office for Civil Rights, the agency that enforces the non-discrimination law.

First, a disclaimer: On a individual level, the only person whose sexual orientation is of significant interest to me is my wife’s. I am unable to whip up an interest in what other consenting adults do, or whom they chose to do it with (I am glad to be alive, though, so: thanks for being straight, Mum and Dad). On a legal level, I strongly endorse equal protection of the laws for all citizens and the separation of church and state, and hence support the right of gays to marry (as a search of this blog for the term “marriage” will attest).

Now, “on with the show,” as Bugs would say.

In a post on this case, legal luminary Eugene Volokh presented the First Amendment arguments that could be made on both sides. But I think it’s more fundamental than that. To me, this isn’t so much a case of free speech as one of involuntary servitude under the Thirteenth Amendment. Free speech arguments would not be germane if the conscientious objector to gay weddings was a baker rather than a printer. It’s certainly conceivable that a conservative baker might object to making a wedding cake capped with two men, or two women.

So the question, to me, is: In AmericaLand, is it right for one citizen to be able to compel another citizen to do work for them against their will? I don’t think so, and I think this should rightly be construed as a violation of the Thirteenth Amendment’s proscription against “involuntary servitude.”

I asked Eugene about this, and he wrote back that:

It could be argued, but the argument would lose. The Thirteenth Amendment has never been read as prohibiting all involuntary work (e.g., the draft, the duty to serve on a jury, the duty to testify); it has been generally understood as prohibiting only slavery and things much like it. This narrow interpretation is probably faithful to how it was understood at the time it was enacted, though I'm not sure.

I’m not a lawyer, but since the Thirteenth Amendment refers to slavery and “involuntary servitude,” I figured there had to be more to it than that. Sure enough, a little surfing turns up the fact that the “involuntary servitude” clause was meant to apply to peonage: an employer physically forcing an employee to work for him to pay off a debt. According to a paper on the subject, the requirement that a monetary debt be involved was relaxed in practice during and immediately after World War II.

So, to me, it doesn’t seem that far a stretch from employers forcing employees to work for them, to customers forcing businesses to serve them. More fundamentally, whether or not this legal case currently can be made, I think it should be able to be made.