It would seem that the answer to whether the court can uphold both expressive freedom and equal access is, no.
If a court cannot compel a bakery to bake a cake for a couple because of his religious beliefs, and likewise if a court cannot compel a t-shirt maker to print far-right slogan t-shirts because of his/her religious beliefs, I don’t see how an argument could be made that a court could at the same time guarantee equal access. Under a framework of negative rights, an individuals hypothetical positive right, which I think is often what’s being subliminally advocated, cannot be protected.
What bothers me about this conclusion though is that it would seem to only further divide groups that already exist at odds, but so does compelling specific treatment of each other.
I could see a path in government alone for rules that church and state genuinely be separated so that where the law states that same-sex couples may be married a clerk (in their role as a government employee) cannot impose their religious beliefs in certifying a marriage. But then in the case of Holt v. Hobbs I find myself empathetic to the the rejection of government as a qualifying factor for an uninhibited restriction on autonomy.
A rejection of restrictions on autonomy would result in a nation where equal access is not guaranteed, and if we’re willing to live with that and move on to the next cake shop or find another clerk to certify a marriage then that’s fine, but I understand how slippery of a slope that is when extremism is on the rise and we see the legitimate need for positive rights where negative rights are failing marginalized communities.
Nothing here feels conclusive, but these are some musings.
You’re touching on an important tension. The way courts have resolved the access issue is to see it as a compelling government interest, which is one part of a balancing test. All couples need access to a bakery that’ll make them a wedding cake. If the Christian baker’s objections create a real access issue for gay couples, then the government wins and the baker loses. If, however, there are other bakeries nearby that’ll make the cake and there’s no real access issue, then the baker is more likely to win.
It would seem that the answer to whether the court can uphold both expressive freedom and equal access is, no.
If a court cannot compel a bakery to bake a cake for a couple because of his religious beliefs, and likewise if a court cannot compel a t-shirt maker to print far-right slogan t-shirts because of his/her religious beliefs, I don’t see how an argument could be made that a court could at the same time guarantee equal access. Under a framework of negative rights, an individuals hypothetical positive right, which I think is often what’s being subliminally advocated, cannot be protected.
What bothers me about this conclusion though is that it would seem to only further divide groups that already exist at odds, but so does compelling specific treatment of each other.
I could see a path in government alone for rules that church and state genuinely be separated so that where the law states that same-sex couples may be married a clerk (in their role as a government employee) cannot impose their religious beliefs in certifying a marriage. But then in the case of Holt v. Hobbs I find myself empathetic to the the rejection of government as a qualifying factor for an uninhibited restriction on autonomy.
A rejection of restrictions on autonomy would result in a nation where equal access is not guaranteed, and if we’re willing to live with that and move on to the next cake shop or find another clerk to certify a marriage then that’s fine, but I understand how slippery of a slope that is when extremism is on the rise and we see the legitimate need for positive rights where negative rights are failing marginalized communities.
Nothing here feels conclusive, but these are some musings.
You’re touching on an important tension. The way courts have resolved the access issue is to see it as a compelling government interest, which is one part of a balancing test. All couples need access to a bakery that’ll make them a wedding cake. If the Christian baker’s objections create a real access issue for gay couples, then the government wins and the baker loses. If, however, there are other bakeries nearby that’ll make the cake and there’s no real access issue, then the baker is more likely to win.