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Horowitz: Parler lawsuit: The courts discover free enterprise at the exact wrong moment

Op-ed

One-way street

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Imagine if every venue providing wedding services — from rental places and caterers to bakers and florists — were controlled by Christian conservatives. They worked together with all their distributors to ensure that nobody could perform a gay wedding anywhere in the country. Well, that is exactly what is occurring today in reverse on free speech. But there is no constitutional right to a gay marriage, while there is a right to free speech.

Last Thursday, Judge Barbara J. Rothstein of the Western District of Washington denied Parler's motion to force Amazon to restore Parler's social media platform on Amazon's server. Suddenly, the liberal legal community believes in the right of a private company to serve whomever they choose. The double standard is unmistakable.

I'd love to go back to 1789 when private businesses could do whatever they wanted. And indeed, had that been the prevailing law of the land over the past few generations, conservatives would have a lot more power and leverage in the economy and culture than they do today. But that is far from the case. In fact, the legal system has essentially controlled every aspect of what private businesses can do – up to and including the current lockdown policies that downright deny businesses the ability to serve anyone.

Just consider the case of a baker being forced to personally make a cake for a ceremony that violates his religious beliefs. Although the Supreme Court ruled in favor of Masterpiece Cakeshop when Colorado fined the shop for declining to bake a cake for a gay couple, the majority opinion hinted at the fact that, generally speaking, cake shops cannot decline to bake cakes. It's just in that particular case, the court held that the Colorado Civil Rights Commission did not enforce its mandate in a "neutral" manner.

Pursuant to this implied ruling, several courts have ruled that private business owners cannot decline to contract for gay events that violate their conscience. In 2018, the Arizona Court of Appeals ruled that, pursuant to a Phoenix municipal ordinance, a Christian boutique artwork shop could not decline to contract for gay weddings. Brush & Nib Studio had a sign outside its shop stating that it would not create any artwork that violates the artists' beliefs, which includes "artwork that demeans others, endorses racism, incites violence, contradicts our Christian faith, or promotes any marriage except marriage between one man and one woman." Although there were numerous other places for gay couples to patronize, Brush & Nib was forced to engage in involuntary servitude for something the proprietors believe to be sinful.

Now, keep in mind that we are discussing tiny single proprietorships where the owners personally create with their hands sentimental products. Also, there are endless venues for individuals who want to make a gay ceremony to patronize. In fact, I'm sure they can actually find greater bargains and better service for their championed endeavors than the rest of us. Yet, somehow, Big Tech can collude to box out any conservative from accessing any way of effectively communicating, obtaining e-commerce, or even getting a job in the economy, in contravention to foundational antitrust laws and principles. So, if three companies buy up all the roads, they could block conservatives from traveling anywhere, but mom-and-pop shops must personally make products for events and speech that they find offensive!

Not only have the courts applied anti-discrimination law to denial of service, but in a case originating in this same federal district in Washington as the Amazon lawsuit, the courts established a rule that a pharmacy must actively stock products that it disapproves. In 2015, in the Stormans case, the Ninth Circuit ruled that a Washington state pharmacy must provide essentially every type of contraception under the sun, even though 30 other vendors sold all the products within five miles. SCOTUS refused to grant an appeal to the owners of the pharmacy, over a sharp dissent from Justice Alito.

Additionally, numerous courts have ruled that the Trump administration must continue enforcing the Obama-era contraception mandate, forcing employers to directly or indirectly provide contraception as part of their mandated insurance benefits for their employees.

Thus, when conservatives are the consumer, they can be denied service through monopolistic collusion to the point that it boxes out their existence from the public market, but when they are the provider, they must actively provide everything that violates their conscience, even when they are the only ones declining to contract and the product or service is widely available.

Moreover, in the religious liberty cases, unlike with Big Tech discrimination, the store owners or companies are explicitly protected by the First Amendment.

In 2016, Christian Mingle, a Christian dating website, was forced to offer gay dating options thanks to a California lawsuit. Worse, just last year, St. Joseph's Hospital in Baltimore was sued for not performing a hysterectomy on a woman's totally healthy uterus because she believes she really is a man. Most legal observers think the plaintiff will likely win thanks to Justice Gorsuch's ruling in Bostock codifying transgenderism into anti-discrimination law.

In other words, a single Catholic hospital is now forced to offer a "service" that is tantamount to mutilation of the body and violates the Hippocratic oath under the color of anti-discrimination and never denying service, but the entire Big Tech and corporate world can collude to deny all conservatives all forms of communication and commerce.

We no longer live in a constitutional republic. We live in a sadistic two-tiered justice system wherein conservatives are subject to hedonistic communism, but leftists can live in accordance with 1789 laissez-faire regulations built on a monopoly handed to them by government so that they can collude and banish conservatives from society.

Do you still want to know why 74 million people are mad?
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