I am not saying that the state may not interfere with commerce, that proprietors should be allowed to create and sell whatever to whomever they want – selling a nuclear weapon to a foreign enemy, for example. That is commercial anarchy, and not a principle of liberty or objective morality. I am a firm adherent to the principle of liberty that “everything which is not forbidden is permitted.” The state may forbid commerce, but it should not compel it, irrespective of “protected” civil characteristics.

The Supreme Court heard arguments recently in the case of Masterpiece Cakeshop vs Colorado Civil Rights Commission, the (in)famous cake episode in which Masterpiece Cakeshop was compelled to create and sell a cake to a same-sex couple seeking to have their union recognized as a marriage.

The legal theory set forth by the petitioners (Masterpiece) was pretty clear: compelling an artist to create and sell a work of art violates free speech. The initial line of questioning by the justices centered on the hypothetical “off-the-shelf” cakes. Would Masterpiece be required to sell a non-customized cake to the same couple?

The reply from Ms. Waggoner (Masterpiece’s attorney) emphatically stated she has no problem with Masterpiece Cakeshop being compelled to sell their pre-made inventory. “Under our theory, he would need to sell that cake because he’s already created that cake with the message that he intended for it, but we are drawing the line prior to the compulsion — there can be no compulsion of speech.”

Justice Ginsberg wanted to be sure. To Ms. Waggoner, she asked, “You are not challenging his obligation to sell his ordinary wares, his, as you put it, already-made wares?”

“Not at all,” Ms. Waggoner replied, “And, in fact, Mr. Phillips offered the couple anything in his store, as well as offered to sell additional cakes, custom cakes, that would express other messages.”

I am sure there are all sorts of legal precedents and case law and common law that led to Ms. Waggoner’s theory that compulsory commerce is just fine when the property is in inventory, but not just fine when it is not. And while I agree there is a difference between the two, I don’t agree that Masterpiece Cakeshop – or any person or corporation – should ever be compelled to buy another person’s money by selling their goods or services. I honestly don’t care what the current statutes are, what the case law says, or what other legal precedent there is.

Compulsory commerce is compulsory commerce is compulsory commerce.

The petitioner’s argument was met with pointed questions, drawing comparisons of their arguments to those of race and other characteristics. If Masterpiece may not be compelled to create a product for a same-sex ceremony for religious reasons, why couldn’t it refuse to create a cake for an interracial marriage on the same grounds? Olympic-caliber legal gymnastics were employed to distinguish between the two cases, but I’m not sure the justices were convinced. I’m certainly not.

But that’s beside the point. The entirety of the arguments – the petitioner’s struggle to define a clear line of distinction as to why it is wrong to compel businesses to create a product for a same-sex union, but not wrong for an interracial one – rested on existing case law, the definition of speech, and legal precedent. Natural law or self-evident human rights was never given its appropriate appeal.

Now I know that I am not qualified to discuss the practice and execution of the system of justice called “legal positivism” – that worldview that admits the law (not the ethic of the law) is sufficient to administer justice; or put more simply, that The Law is a social construct. I may not be qualified to discuss its systemic practice, but I am qualified to judge its philosophical merits.

American courts have increasingly relied on this legal philosophy over the past two centuries, and I contend our system of justice and our national ethic are not the better for it. It is precisely this worldview that allows what is legal to be therefore called ethical, and what is not legal to be therefore called unethical. This is an existentialist cop-out, one that refuses to acknowledge universal and objective morality, and is allergic to a systemic commitment that strives toward conforming justice unto an ultimate ethic.

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