Involuntary Servitude Returns to America
A confession: Many years ago, I was an ultra-left liberal, a Marxist, in fact. As a newly minted attorney at law in New York, I joined the ACLU and volunteered serve as one of their lawyers. About six weeks later, they asked me to represent an American Nazi accused of inciting to riot. I refused. They were mightily put off, horrified in fact. They remonstrated. “But he has a right to counsel.” I said, “Maybe so, but he doesn’t have a right to me. I’m protected by the Thirteenth Amendment.” (The Thirteenth Amendment to the Constitution abolished slavery and involuntary servitude.) I waxed sarcastic. “It doesn’t protect only former slaves. It also protects Jewish lawyers.” The ACLU and I parted company over the matter.
It took me ten years of mulling over the matter to realize that the right to competent counsel is not the right of the accused. It is our right. We are the ones who have the right to insist that the accused be represented by counsel. That is to protect us, the society at large, from the terrors of a Star Chamber. Like all civil liberties law, it is based on the bedrock notion that what the government does to him today, it can do to you tomorrow. And it will. Therefore we have the right to counsel representing the accused. In his case, I am willing to waive that right. In my opinion, we have the right to decline to even share the planet with Nazis. I know they feel that way about me. We can surely turn a deaf ear to his plea for counsel to defend him when he incites to riot against me.
I have told this story to people and some tell me that I was wrong, that I descended to his level (seriously) and espoused fascism in opposition to him. For those who agree with that view, here is a hypothetical parallel case to consider. If a Ku Klux Klansman is accused of inciting a race riot and attempting to incite a lynching, should a black lawyer have to agree to defend him? I have known more than a few black lawyers. Some were my colleagues, some were my students. Not one of them would, I think, agree to defend him. They have far too much self-respect. I do not think the ACLU would even suggest it. Such a grotesque obscenity would never occur to them. But what more natural defenders of Nazis than Jews?
In the realm of non-legal services, these are some of the reported cases of people being penalized for refusing to provide services for events celebrating homosexuality for religious reasons.
- A 70-year-old florist, Barronell Stutzman, was fined by the State of Washington for not providing flowers for a "gay" wedding. Now her home and personal savings are at risk. The state and the plaintiffs propose to bankrupt her personally and the court has ruled that her personal property is available to execute any judgment. They intend to render her destitute in her old age.
- Photographer Elaine Huguenin was ordered by the State of New Mexico to give a lesbian $7,000 for declining to photograph her same-sex wedding.
- Bakers, Aaron and Melissa Klein were fined $150,000 by the State of Oregon for refusal to bake a cake for a lesbian wedding based on religious objections.
- Blaine Adamson was ordered by the city of Lexington, Kentucky, to undergo 'sensitivity training" for refusing to print T-shirts for a gay pride festival.
There has been an outpouring of hateful invective over such incidents, including physical intimidation and threats of violence. In a similar Colorado case, a commissioner on the Colorado Civil Rights Commission, Dianne Rice, even compared another baker who refused, on religious principle, to bake for a same-sex wedding, to slave owners and Nazis. (See similar cases discussed here.)
I guess she would include me among the Nazis for discriminating against a Nazi. Fascinating. What about a black lawyer who refuses to defend a Klansman? Would he or she, also be comparable to a Nazi? If not, how is it different?
We have a florist, a photographer, a baker and a printer who had no right, according to the courts of several states, to refuse to work for particular events and a similar decision by a state commissioner.
Comparing the following hypothetical cases might help to discern the principle being vindicated:
- Does a Muslim checkout cashier have the right to refuse to handle alcoholic beverages or pork products, or even to ring them up?
- Does a Muslim taxi driver have the right to refuse a passenger because the passenger is carrying a bag from the Duty Free with alcohol?
- Does a Muslim who is a short order cook, have the right to refuse, on grounds of his religious commitment, to make a customer a bacon, lettuce and tomato sandwich?
- Jewish law prohibits a Jew from cooking meat with milk. If a Jew is a short order cook, does he have the right to refuse to make a customer a cheeseburger?
In cases (1) and (2), the Muslim is routinely accommodated. The pork products and alcohol are rerouted to a different checkout in order to avoid the problem and the airline passenger has to find another driver willing to carry him (or her) and the alcohol. The other two are hypothetical only.
Some more questions:
If your answer to any one of these hypothetical cases is that he has the right to refuse, why is it distinguishable from the cases in which there is no right to refuse service?
Given that America no longer allows involuntary servitude, why do florists, photographers, bakers or printers have to work for anyone who requests his services? Why are they not protected by the Thirteenth Amendment?
It is true that eateries in the 1960’s were forced to serve black customers. That was a federal matter because restaurants are “public accommodations,” businesses that are necessary to vindicate a person’s right to freedom of movement. The governmental can force Woolworth lunch counters and Lester Maddox’s Pickrick Restaurant to serve blacks because the courts centuries ago recognized that the king has an interest in the ability of citizens to move about freely and conduct business and thus increase the wealth of the realm and the power of the king.
Florists, photographers, bakers and printers, however, are not public accommodations. What is the government’s interest that overrides the Thirteenth Amendment prohibition on involuntary servitude? Quite simply, the government intervenes because the people have gotten used to the government “regulating” their behavior in all matters.
The difference between the cases where the person can refuse service and those in which the person cannot is no longer one of law. The rules do not matter anymore. Not even the facts matter anymore. All that matters is status. More examples:
White cop vs. black teenager: Who wins? You don’t even have to know what happened.
Privileged white males vs. black female: Who wins?
Hispanic vs. black teenager would be problematic because of the relatively equal statuses. So the media invented the status “White Hispanic” to decide the case against George Zimmerman for the death of Trevon Martin. No need to know what happened, is there?
So now we have white Christian florist vs. gay couple getting married. The content of the law is irrelevant. What does your gut tell you about a case of Asian Muslim florist vs. gay couple getting married? It doesn’t feel the same as a white Christian florist, does it?
What about blind justice? Equal protection of the laws? How quaint. Can it be that the Thirteenth Amendment occurs only to me? If so, then the Constitution is irrelevant. Don’t even bring it up. It’s just an old parchment written by a bunch of privileged white males, some of whom were slave owners, so who needs it?
There can be no democratic republic without Rule of Law, citizens. This way lies Robespierre and the Reign of Terror. When did America enact Political Correctness as the Supreme Law of the Land? Who even knows who determines what is Politically Correct? Whose authority are we accepting? Do you even know?
Jack Golbert has practiced law in New York, California and Israel for a multi-national clientele including Israeli NGO's and was also a law professor in Los Angeles. He has practiced law in Jerusalem since 1986