The second thing we ought to consider is do we have good grounds to object to this ruling if we would not also object to a ruling of the state of New Mexico which prohibits a business from discriminating among its clients on the basis of race? In other words would we also object if the state of New Mexico prohibited such a business to decline to photograph an African-American wedding?
Let's look at what the 14th amendment has to say:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Interestingly, the 14th amendment equal protection clause does not say a state may not make discriminations. In other words, states make discriminations every day based on age, sex, previous criminal convictions, academic achievements, wealth, income, marital state, and a host of other standards. Evidently, these discriminations did not run afoul of the equal protection provisions of the 14th amendment even though they clearly deny those persons so categorized (or excluded from a given category) equal protection or equal treatment under the state law.
So evidently it is only some discriminations that are prohibited by the 14th amendment. The most obvious one is race. The courts have held that the state may constitutionally discriminate among people residing within its boundaries on the basis of age and even deny them drivers licenses or the right to drink alcohol or it may favor people of advanced age with pensions and support, while it discriminates against people of more advanced age by treating them more harshly for the same crime than it treats minors. So clearly a state may discriminate among its residents for several reasons, some of which have been listed above.
A state can pass a law as far as I can tell that prohibits businesses from discriminating on the basis of race. It may not pass a law compelling businesses to discriminate on the basis of race because that state action would run afoul of the equal protection clause of the 14th amendment. As far as the wording of the 14th amendment is concerned, a state may remain silent while it witnesses a business discriminating on the basis of race. But stop!
It is clear that it is the practice both of many American states and the federal government to require states to discriminate in favor of some races. For example, we are all well aware of the controversy arising out of the efforts beginning in the Carter administration, accelerated under Clinton, and ineffectually opposed by Bush, which compelled banks to make loans to African-Americans and other minorities. In fact Clinton sent his Attorney General to threaten banks who did not make such loans. These loans were acts of favoritism because the recipients were simply not credit worthy and the rest of society, the taxpayers, mortgagors, homeowners suffered economic damage as a result of their inevitable defaults. So the practice varies wildly from the wording of the Constitution.
Likewise, both the federal government and the states remain silent in the face of discrimination by private agencies such as colleges and universities in favor of one race over other races in their admissions policies, or in the distribution of scholarships etc.
Yet, we say that there is something inherent in discriminations based on race that we will not tolerate when done by the state. I see nothing in the 14th amendment that compels the state to pass laws that prohibit private actors from discriminating on the basis of race yet all have done so and, of course, the federal government has done so.
These laws which restrict private actors from discriminating are relatively new. For example, the state of Virginia had a law on its books that required private citizens to discriminate on the basis of race and refrain from marrying African-Americans if you are white and vice versa. This law was struck down by the Supreme Court. To my knowledge, no state has yet passed a law depriving private actors of the right to discriminate as to a potential marriage partner on the basis of race. In other words a white lady is still legally entitled to decline an offer of marriage by a black man because he is black, and vice versa.
The interesting question is what legal theory would either the state courts or the federal courts invoke to justify declaring such a law unconstitutional, as they no doubt would, at least for the foreseeable future. My assumption is that the courts would not countenance a state law that deprives people of the right to discriminate in the marriage contract on the basis of race. Yet we are not allowed to discriminate in most every other contract on the basis of race and the courts have been diligent in denying us that right.
Where in the Constitution are the courts empowered to make these distinctions?
The courts have long made a distinction between people who are engaged in public commerce and those who are acting privately. In other words I have a right to discriminate on the basis of race concerning whom I choose the marry, or even whom I choose as friends but I may not legally do so when I act commercially. So it is likely that a state statute which purports to require me to be friends with homosexuals would be declared unconstitutional just as a state statute which compels me to accept offers of marriage from another man even if he is black instead of white or of any other color.
But this can get tricky. Suppose a prenuptial agreement exists by the terms of which each party guarantees that both are Caucasian to a given degree but one-party lies about his bloodline and the other party seeks an annulment or a setting aside of the provisions of their premarital agreement because of fraud. It is not clear that a court would make the lying party forfeit his or her rights under the prenuptial agreement. Why? Would not the courts say that such a prenuptial agreement is against public policy? In other words, the law will countenance people refraining from matrimony because of their racial prejudices but it will likely not give them remedy when they are defrauded on the same basis.
So where does this power in the state come from? We understand the prohibitions on state power as might be expressed in the federal Constitution and Bill of Rights or in the 14th amendment. But what about those two amendments whose names we dare not utter, the ninth and 10th amendments?
The 10th amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Well it seems clear that no power is delegated to the United States to regulate photographers of gay marriage or to have any power to do anything about commercial enterprises that discriminate against homosexuals. Therefore, the powers not delegated to the federal government must be reserved to the states or to the people. Which is it, the states or the people?
The ninth amendment:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Without re-litigating the last 200+ years, suffice it to say that neither of these amendments provide a practical answer these questions. For all intents and purposes these amendments are dead letter in the world created by the Supreme Court, which is the world we live in.
Does that mean that the Supreme Court has felt that it may not prohibit certain state actions or require certain state actions, or put another way, prohibit discriminations by an individual, or permit discriminations by an individual?
Certainly not! One need only take a look at the line of privacy cases in which the Supreme Court has intruded on the traditional power of the states to prohibit abortions, prohibit contraception, prohibit sodomy. It is done so because it as found a right of privacy in the individual which it defines as embodying the right to abort, practice birth control, or engage in sodomy and further finds to be constitutionally superior to the power of the state to prohibit these activities. It is important to understand this line of cases have come subsequent to the civil rights cases.
When the Supreme Court declared Plessy vs. Ferguson (1898) to be unconstitutional in Brown vs. the Board of Education in 1954 , the court not only reversed its own decision but it reversed about a century of actual experience in most of America. In the next 15 years culminating with the passage of the federal civil rights laws under Lyndon Johnson, the nation underwent a revolution in how it regarded racial discrimination. It also underwent a revolution in the way it thought about the power of the state either to require citizens to discriminate on the basis of race or to prohibit citizens from discriminating on the basis of race. What had been the norm in Jim Crow now became intolerable and our view of what the Constitution permitted or required followed our change of attitude.
The parallel to the homosexual rights movement is easy to make. It has not been many years since the Stonewall riots in Greenwich Village in 1969 but there has been a huge revolution in the way homosexuality is regarded. My point is that if we are looking to the Constitution to tell us where to draw the line we are looking in the wrong place. The Supreme Court, no less than a shameless politician like Bill Clinton, looks at the lay of the land and determines how far the public is going and therefore how far the court may go. Then the court goes rummaging around in the Constitution to justify what it wants to do and what it feels they can get away with.
So, I do not see any constitutional restriction on the states power to prohibit commercial photographers from discriminating against homosexuals. On the other hand, I don't see any constitutional vested powers in the states to prohibit commercial photographers from discriminating against homosexuals unless I've been in a coma and they have re-vivified the 10th amendment while I was sleeping.
Mark Levin says that we have become unmoored from the Constitution. He is absolutely right. We are in a world of jurisprudence which might as well be written by advertising executives on Madison Avenue as by Men in Black Robes. While it is true that the court will nudge public opinion, as it no doubt did Brown vs. the Board of Education, for the most part these cases are won or lost in the lost the towers of the New York Times or in the faculty lounges of our first line universities.
These ruminations are not to be regarded as being informed by the corpus of American constitutional law cases. It is merely the excursion of a jaundiced eye seeing how these things really get settled in our society.
Finally, they are by way of illustrating Nathan Bedford's first Maxim of American politics: all politics in America is not local but ultimately racial.
