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Come with me in imagination to a place that certainly exists somewhere in this country. It’s a small food vendor — a restaurant, bakery, pizza parlor, or what you choose — that happens to be owned by a University of Kentucky graduate. Today, he’s a disappointed, even bitter Wildcat fan whose mood is not in the least improved when a nice guy with a Midwestern accent breezes through the door. In red. Whistling “On, Wisconsin!”
Now, let’s hope the guy behind the counter stays polite, but we know the Badger will get his pizza or ice cream; it would be outrageously unthinkable that — even at his bitterest — the Kentucky grad would deny service to someone just because he’s from Wisconsin.
But suppose the customer isn’t after a slice of pizza. He’s planning a big party to watch Wisconsin take Duke down on Monday. Maybe he even wants a cake that says “Go Badgers!”
Can the Kentucky grad say no? That’s an absurd situation, but we all know people who are deadly serious about their sports. If the Kentucky grad doesn’t want to do it, can he be coerced? Or is he free to offer only the services he wants to offer?
It is perhaps easier to illustrate than to explain the difference between denying service to certain people and an unwillingness to offer specific services or participate in specific events. And yet it is a critical distinction, though not always a precise one. The first is generally understood to be unacceptable in the marketplace; the second is a vital component of religious liberty, and perhaps of liberty in general.
It is not clear to me why there should be so much coercion as to require a religious exemption in the first place. Especially when it involves any form of artistic expression, surely “I’m not comfortable with that, let me refer you to someone else” should be sufficient. Even if the discomfort is trivial. You can’t stand their wedding colors. You’re sick of “Let it Go” and don’t want to do another Frozen-themed birthday party again, ever. If you can afford the loss of business, aren’t you free to make that call? And do we really want the government trying to evaluate your motives?
Most people would agree what our Wisconsinite should do. There are other places to go, and winners should be generous, so — when he picks up on the bitter Kentucky mood — he makes a cheerful comment and heads out to find friendlier ground. Crisis averted. Because it’s not nice to destroy someone for not doing what you want. That’s not quite the Founders’ understanding of liberty of conscience, but it’s still the basic American view. And that’s why this fight for hearts and minds is still utterly winnable.