@Jazzhead Thanks for the explanation about what you meant by civil. I agree with that part. I guess I would challenge the reason someone has the right to receive a service. What you are dealing with are the tacit agreements that unlie the transaction. For example if I go to the store a tacit agreement exists that the prices on the items are correct and that the clerk will tally them correctly ect.
The problem here in dealing with a service is just how many of these agreements carry over into this market. If you view it as a more contractual market then I think it is clear the rights of the producer trump the expectations of the seller. The basis of free exchange is one person trading two willing participants trading goods or labor hours. Artist can hold out for jobs that they want, just because they say they are artist doesn't mean anyone can hire them to slap up a billboard. Think of movie stars they don't have to do just any movie; it's a different market. If you have watched The Fountainhead there are some great examples of this thought. You might look into this, Ayn Rand was no great proponent of Christianty by any stretch.
So I think we are dealing with different market rules than at the grocery store. The tacit agreement that the customer is going to get the standardized product they expected is certainly not as strong. Does their expectation of a service to be provided give them the right to call in the government and force someone to enter into a sale against their will? Given the clear first amendment applications and the fact that such coercion runs counter to the concept of voluntary free trade that the market is built on I do not think the government has the right to force someone into labor against their will.
Just my dos centavos. Thanks for the discussion. You certainly challenged me to think beyond any knee jerk Bible thumping. Not that I discount the religious arguments here, but I wanted another way to skin the cat.
I think as a practical matter you've enunciated a key difference between establishments that are barred from discriminating, and those which effectively can. The nondiscrimination laws are aimed at "public accommodations", which generally mean businesses, including private businesses, that are open to the public. One federal law, 42 U.S.C. section 12184, limits the reach of that general definition by requiring a "public accommodation" to fall into one of twelve prescribed categories:
Public accommodation. The following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce—
(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;
(B) a restaurant, bar, or other establishment serving food or drink;
(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
(D) an auditorium, convention center, lecture hall, or other place of public gathering;
(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
(G) a terminal, depot, or other station used for specified public transportation;
(H) a museum, library, gallery, or other place of public display or collection;
(I) a park, zoo, amusement park, or other place of recreation;
(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.
You'll note that a bakery is specifically listed, and more generally a "sales or rental establishment". Also listed is my own profession, although what's interesting is the choice of words used: the "office of a lawyer". Now we all know that lawyers can and do pick the cases and clients they take. And they do that by resort to the method you describe in your post - they enter into an individualized contract with each client, describing the terms and conditions of service. So while I cannot ostensibly turn away from the office door a potential client based on skin color or religion or sexual orientation, because each engagement is customized I can effectively choose my clients and have a facial defense on that basis to a charge of discrimination.
So I agree with the import of what you're saying. If I go into a store and request a service that is posted and priced on the storeowner's wall or menu, I better not be turned away because I'm white or straight or Christian. But if the service is customized to the needs of the client/customer, that very process provides a means for the business owner to effectively discriminate. If he's smart he won't say he's discriminating for unlawful reasons, but for reasons based on the job he's been asked to perform.
And that's the heart of the wedding calligrapher's argument - that his task is artistic and inherently customizable, and so he can accept or turn down business on an arbitrary basis. Is that a winning argument in court? I guess we may find out - and a lot may ride on the interaction between the calligrapher and his customer. A SMART calligrapher won't get on his high horse and cite religion for his refusal to provide invitations that say Bob and Ray. A STUPID calligrapher will spout a religious rant and get sued for his efforts. A SMART calligrapher will say he's too busy and can't schedule the work, and will recommend another calligrapher that the customer can turn to. And that's how it usually goes in the real world, in which folks of good will get along without the intercession of lawyers.
