The Cato Institute

Masterpiece Cakeshop: Tolerance Goes Both Ways

Cato is the only organization in the country that has gone to court to defend both one’s right to marry a person of the same sex and one’s right as a businessperson to join or not join as one chooses in assisting in celebrating a same-sex wedding…

This week the Supreme Court heard arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case about a baker who refused to design a cake for a gay wedding. Jack Phillips, the owner of Masterpiece Cakeshop, had served gay customers for years, but he feels serving a same-sex wedding will violate his religious convictions.

Is there a difference between declining to serve a class of people versus a particular event? Does the level of customization of a product matter? Is artisanal baking even protected by the First Amendment? Shouldn’t all this boil down to the freedom of association — including the freedom not to associate?

But this case is bigger than Jack Phillips…

In 2015, the Supreme Court extended constitutional protections to same-sex marriage and created one of those cultural moments that feels like part of a Hollywood production. People wept tears of joy on the steps of the Court.

Opposition to legal recognition of same-sex marriage is a minority view even among Republicans. 

That said, folks with religious convictions don’t change their minds over a Supreme Court case, and they certainly don’t change their minds because the government forces them to serve same-sex weddings. In fact, they’re likely to retrench in their beliefs.

We live in a pluralistic society, and not everyone’s convictions fit together easily. Tolerance needs to be mutual, not one-sided.

Please allow some time for adjustment, and allow those who are conflicted on these issues some space and understanding.

Learn more…

Lov(ing) is Love

Fifty years ago today the Supreme Court struck down Virginia’s ban on interracial marriage…

Mildred Jeter, a black woman (though she also had Native American heritage and may have preferred to think of herself as Indian), married Richard Loving, a white man, in the District of Columbia in 1958. When they returned to their home in Caroline County, Virginia, they were arrested under Virginia’s anti-miscegenation statute, which dated to colonial times and had been reaffirmed in the Racial Integrity Act of 1924. The Lovings were indicted and pled guilty. They were sentenced to a year in jail; the state’s law didn’t just ban interracial marriage, it made such marriage a criminal offense. However, the trial judge suspended the sentence on the condition that they leave Virginia and not return together for 25 years. In his opinion, the judge stated:

Almighty God created the races white, black, yellow, malay, and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

Five years later they filed suit to have their conviction overturned. The case eventually reached the Supreme Court, which struck down Virginia’s law unanimously.

The Loving case was a milestone in the progress toward a country that truly guarantees every citizen life, liberty, and the pursuit of happiness and equal protection of the laws. And, of course, it played a key role in the legal recognition of same-sex marriage four decades later.

From a libertarian perspective, it would be best to get the government out of marriage entirely—let marriage be a private contract and a religious ceremony, but not a government institution. But, whenever government imposes obligations or dispenses benefits, it may not “deny to any person within its jurisdiction the equal protection of the laws.” That provision is explicit in the 14th Amendment to the U.S. Constitution, applicable to the states, and implicit in the Fifth Amendment, applicable to the federal government.

Both Loving and Obergefell are landmark decisions that extended liberty and justice—and the freedom to marry—to all. But, had it not been for Loving, we may not ever have had Obergefell. Today we celebrate the late Richard and Mildred Loving — and their lawyers — and the victory that they won for all Americans.

Learn more…

Poll: 51% of Americans Say Business Owners Should Serve Same-Sex Couples, but 59% Say Wedding Businesses Should Be Allowed to Decline

A recent AP/GfK poll finds a slim majority (51%) of Americans say businesses with religious objections should be required to serve same-sex couples. Forty-six percent (46%) say these business owners should be allowed to refuse service. However, for business owners specifically offering wedding-related services, Americans say these particular businesses “should be allowed to refuse service” by a margin of 59% to 39%.

Taken together, these polls suggest that a sizeable share of Americans think the state should not prohibit same-sex couples from getting married and that the state should not require wedding-related business owners with religious objections to provide services against their will.

These results correspond with the nuanced libertarian argument for both religious freedom AND same-sex marriage.

Read more…

Whatever Happened to Religious Freedom?

Gay marriage was a win for liberty, but when cake bakers and others are fined for adhering to their beliefs about same-sex marriage, a new kind of discrimination is upon us.

In the Wall Street Journal, Cato’s Vice President for Legal Affairs Roger Pilon discusses recent situations that have forced private individuals and organizations into associations they found offensive.

Read the full article…

We Won! SCOTUS Rules in Favor of Same-Sex Marriage!

In a 5-4 decision, the Supreme Court held that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex.

Join us for a LIVE discussion of what the ruling will mean for the Fourteenth Amendment, existing marriage laws, and individual liberty.

Tune into cato.org/live at 3 p.m. EST today and tweet your questions using #CatoConnects.

Help us spread the news on Twitter and Facebook!

Marriage and Equality at the Supreme Court

The Supreme Court on Tuesday heard arguments over the constitutionality of gay marriage.  Vindicating conventional wisdom, the arguments suggested that the Court will find that states must both recognize and license same sex marriage.  And according to Cato scholar Ilya Shapiro, the Court should – and probably will – stay away from pontificating about marriage or philosophizing on the nature of rights. “The Fourteenth Amendment is silent as to marriage, as it is regarding all other possible objects of state regulation,” said Shapiro. “What it speaks to instead is the equal protection of the laws.”

• “States Must License Gay Marriages Only If They License Straight Ones ,” by Ilya Shapiro
• “Supreme Court Focuses on Equality Under Law,” by Ilya Shapiro
• Cato’s Brief in Obergefell v. Hodges

Once Again, Libertarians are NOT Conservatives

“Cato has consistently embraced civil liberties, including but not limited to the right to same-sex marriage.  By contrast, conservatives – with whom we are mistakenly equated – have been selective in their endorsement of personal freedom.”

— Cato Institute Chairman Robert A. Levy

A new HBO documentary, The Case Against 8, takes a behind-the-scenes look at Proposition 8 and the case to overturn California’s ban on same-sex marriage. Unfortunately, when it comes to libertarianism, they don’t quite get it right. 

The film focuses on Ted Olson and David Boies, political foes who faced off as opposing attorneys in Bush v. Gore, yet fought on the same side in first federal marriage equality lawsuit to reach the U.S. Supreme Court.

In one scene, Chad Griffin, then Board President of the American Foundation for Equal Rights, discusses the battle for gay rights with Olson.  Griffin suggests, in an ill-conceived attempt at humor, that he might re-think his support for same-sex marriage after hearing that both Cato and its chairman, Robert A. Levy,  are vocal advocates for marriage equality.

Responding to the film, Levy points out that the filmmakers have made the all-too-common mistake of conflating libertarians with conservatives. But, marriage equality is just one of many issues where the libertarian perspective is much closer to the liberal stance than the conservative one. 

The reason for this, according to Levy, is that both conservatives and liberals are philosophically inconsistent.  While conservatives want smaller government in the fiscal sphere, they demand bigger government in the social and foreign policy realms. Meanwhile, liberals want less government control of their personal lives, but more government oversight over markets. 

“Unlike liberals and conservatives, Cato scholars have a consistent, minimalist view of the proper role of government,” writes Levy. “We want government out of our wallets, out of our bedrooms, and out of foreign entanglements unless America’s vital interests are at stake.”

Read the rest of his commentary here…