Gal who works for President Trump walks into a restaurant to order dinner. The owner refuses to serve her, explaining to reporters that in doing so she and her colleagues are seeking to “uphold their morals” and “live their convictions,” including that “the restaurant has certain standards to uphold, such as honesty, compassion, and cooperation.”¹

In other news, two gay guys planning to marry walk into a bakery to order a wedding cake. The owner refuses to bake the cake, explaining to reporters that in doing so he is seeking to avoid sending a “specific message” about homosexual conduct to which he objects on religious grounds.²

Two questions about these incidents. First, are they alike or different? Second, what was morally right for the owners—to serve or not to serve?

In my view, the restaurant and bakery incidents are alike, and the morally right choice for both owners would have been to serve the customer. I believe that mine is a distinctly minority view.

Consider first the viewpoint of partisans of the restauranteur. Many on the Left who believe passionately that LGBT people have the right to equal treatment in public accommodations have concluded that it’s permissible and even desirable to deny that same right to Trump Administration officials.

Why the different standard? Gay people are a legally protected minority, they say, whereas political celebrities are not. Trump and his hirelings are so horrible, they say, that it’s morally acceptable to treat them in ways that we’d never treat members of marginalized groups. Civility is fine, they say, but sometimes, when the stakes are high, civility must give way to higher values.

Thus we see a new flurry of opinion pieces with titles like “We Have a Crisis of Democracy, Not Manners” and “White America’s Age-Old, Misguided Obsession with Civility,” both recently published in the New York Times.

Intelligent arguments all, but I can’t buy them. Yes, some of us are more marginalized than others, but to me that fact does not justify a double standard favoring either group when it comes to basic respect and civil treatment. And yes, political misconduct often does more harm than mistreating a few individuals in public places. But to me that fact does not justify mistreating even a few individuals.

Many who disagree with me have cited as a support for their views the tradition of militant civil disobedience as exemplified by Mohandas Gandhi, A. J. Muste, and Martin Luther King, Jr. I admire this tradition and these men deeply. Please show me instances in which any of them, in the name of their militancy, taught their followers to throw their opponents out of restaurants, deny them service in public accommodations, shout them down when they try to speak, taunt or belittle them personally, seek physically to intimidate them in public places, or shoot them while they practice baseball.

One of my most important memories from my childhood in Jackson, Mississippi, was observing the sit-in led by young African-Americans at the lunch counter in the downtown Woolworth. Let’s recall that these students sought the right to be served, not the right to deny service to others. Nor did they taunt or bully or assault anyone, even as those who opposed them resorted with gusto to taunting, bullying, and assault. And whom do we respect today as the moral heroes of this event and many others like them and, largely because of their moral heroism, the eventual victors in the political struggle?

To me, those who view brutishness and unrestrained aggression as badges of militancy misunderstand both the power of militancy and the teachings of these three men.

Now let’s consider the perspective of the partisans of the baker. Their rationales are quite different. First, they say, religious liberty as claimed by the baker is a fundamental human right, existing as its own distinctive good and priority. All the restauranteur can say is: “Here I stand on the basis of my political opinions.” The baker can say: “Here I stand on the basis of my religious faith.” The latter claim, they suggest, is at least in some ways more profound than the former.

Many social conservatives also argue that this baker was not just some guy behind a counter selling baked goods to the public; he was involved in creative expression, similar to that of a painter or fashion designer. Because he invests himself artistically in each cake he creates, they say, he can sell the cakes to whomever he pleases. After all, is Beyoncé obligated to sing for anyone willing to pay her fee?

Finally, they say, wedding cakes are inextricably connected to weddings. As a result, baking the cake for a gay couple explicitly endorses the gay wedding, whereas a restaurateur selling a politician a meal from the kitchen is not openly endorsing that politician, or at least not to the same degree.

Intelligent arguments all, but I can’t buy them. Yes, religious liberty is indeed a fundamental human right. But for me, religious liberty derives from something broader: liberty of conscience. One of my guides here is James Madison, arguably the main architect of the U.S. Constitution, who describes conscience as “the most sacred of all property.”³ And while I confess that I don’t fully understand how and to what degree Madison conceptually distinguished religious liberty from liberty of conscience, I do wish Madison’s wording had prevailed when, in 1789, he proposed that the First Amendment to the Constitution make explicit that “the civil rights of none shall be abridged on account of religious belief . . . nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.”⁴

If we understand liberty of religion as one aspect and consequence of liberty of conscience, it seems that we must conclude today that a claim of conscience (such as the restauranteur’s) is in principle no less weighty than a claim of religious freedom (such as the baker’s).

Second, I see no way for society legitimately to separate, in the area of public accommodations, what is creative expression and what is not. The woman who cuts my hair is highly skilled, displays a bespoke attitude toward her work, and charges a lot.  Does make a hairdresser akin to an artist? I’m not sure. How could I be? How could a judge or politician be sure?

The truth is that no one can determine such issues in an objective manner, because the only standards we have are malleable and deeply subjective. If you say that my bricklaying constitutes an art form, or I say that my roadside vegetable stand or my gun shop or my vinyl record store represents personal creative expression, who are you—who is anyone—to disagree?

This same irresolvable subjectivity governs any attempt to determine whether and under what circumstances my contact with you in a public space constitutes an endorsement of you, or of anything. Does providing a wedding cake mean endorsement? Does smiling at you and holding the door open for you mean endorsement? You tell me. Actually, you can’t tell me, because the answer ultimately depends on when and in what ways I feel personally vulnerable or disagreeably exposed in relationship to you.

Here we face some fundamental realities. We humans live only in groups. All groups require cooperative acts. Any act of cooperation can be understood subjectively as contamination or endorsement. As a result, once we are collectively launched in this direction, particularly in public accommodations, there may be resting points, but there is no logical stopping point until all form of sociality become purely voluntary. Are you ready for that?

I’m not. Again, I grew up in Mississippi in the 1960s and 1970s. I’m very familiar with signs in diners, restaurants, stores, and elsewhere put up by good people acting on conscience and sincere religious conviction saying “We Reserve the Right to Refuse Service to Anyone.” Their decent intentions and motivations aside, I know in my bones what this phenomenon means. I know the bitterness it engenders, the ugliness it produces, and the defensive resentment it both represents and stokes. I want none of it.

Serve Trump officials dinner. Bake wedding cakes for gay couples. Confine both political acrimony and religious disagreement to places other than public accommodations, which we should vigilantly preserve as safe spaces for all.

Why, in a nutshell? Because in our American experiment in ordered liberty—what Katherine Lee Bates called “liberty in law”—the path we seek is to order ourselves in ways that make liberty vibrant and sustainable. One of those ways—one form of order on which shared freedom depends—is the societal rule that says all members of the public are treated equally in public accommodations.

It’s not so complicated. I set up my shop, you walk into my shop, and I treat you no differently than I would treat one of my favorite customers. Even if I detest your political views. Or find your long hair offensive. Or worry that in associating with you I am endorsing sexual immorality or an improper understanding of God.

As a society, we’ve learned through hard, bitter experience that this rule of equal hospitality in public accommodations is more conducive to social peace and enduring freedom than its alternatives. Have we now descended so far into the muck of political rancor and mutual incomprehension that following this simple rule has become too much for us to require of ourselves?