UPDATE:  This was edited after Alexander R. Cohen (rightly) offered critiques on two points:  the nature of anti-discrimination law and the unjustified ad hominem nature of some of the claims…Significant changes are marked in green text and cross-outs…

I have tried in the past to parse the problem of implied contracts and “open for business,” and the rights and duties of a business.

My friend David Henderson has expressed a different view, which is fair enough.  He’s wrong about other things, too, I’m sure.  But there is a difference that rests in anti-discrimination law, an asymmetry, that separates rights of consumers and rights of businesses.  These might be “wrong,” in some larger sense, but they provide the context in which the discussion should take place.

Still, there is a new “case” which brings some issues sharply into focus, while obscuring others.

Here are the facts, as far as I can tell.  One version.  And another version.  Just reading the two accounts tells you that something deep is going on.  It doesn’t sound like they are even describing the same incident.

A couple (they happen to be lesbian women, if it matters) went to a jeweler.  The reason they went to that jeweler, and not some other, was that the business came highly recommended for good service and good prices.  And that was exactly the experience of the couple:  they were happy with the service, and agreed on a custom design that they liked.  They paid for the rings.  And this was a custom ring, so the transaction is not reversible. Unless, it appears, the jeweler expressed a view (in a sign) that the couple disagreed with.

At this point, the couple asserted a particular right:  They demanded to be allowed to return the ring for the full price  Saying that the customer is “allowed” to return the ring, of course, means that the producer is OBLIGED to accept the ring, and return the purchase price, even though it was a custom ring and can’t be sold to someone else at anything close to the same price.

There is no reason to believe there is anything wrong with the ring, no flaws in manufacture, etc., and the customer service received by the couple was impeccable, polite, helpful, and professional.

What the couple is asserting is a right to refuse to do business, after the fact, after the transaction is completed and materials are committed to the manufacture, with a business because they (the couple) happen to dislike the beliefs of the owner of the business.

Now, remember, the earlier (pizza) kerfuffle was about the right of a business to decline–before the fact and in a transaction that involved custom negotiations, with no implied contract–to do business with someone.  The SSM activists asserted that the business had no such right, and was obliged to do business, regardless of the seller’s beliefs.

I disagreed; businesses have freedom of association just like everyone else.  But notice the bizarre hypocrisy of the SSM activists extremists (it would be wrong to say that the actions of a few are representative of the larger SSM / LGBT movement; my bad in the earlier version) here:  they are asserting that beliefs are in fact grounds for refusing to do business, even after a voluntary transaction has been completed.  The difference?  In this case, the SSM activists happen to agree with the beliefs.

The legal theory being advanced by extremists is rather disturbing:   if a bunch of violent vigilantes agree with you, you have the rights those threats protect.  But if they disagree, they will threaten to burn your business.  In both cases, someone who expressed disagreement (one hypothetical, one irrelevant because after-the-fact) was threatened just because of those beliefs.  This video is a bit over the top, but it makes a pretty good point.
[youtube http://www.youtube.com/watch?v=pin-ZBqAgVM]
If you believe that people have the right to display rainbow or pro-SSM posters (and those would be my own view, if it matters; I’m a rainbow kind of guy), then you have to think that people have the right to display anti-SSM posters.  Believing that marriage is one man, one woman is not inherently homophobic.  I happen to think the anti-SSM view is incorrect, but I cannot use the force of the state, or the vile threats of brigands and fringe groups, to force others to act as if they share my beliefs.

Or, to put it another way:  The problem with the Indiana pizza shop was that an employee was asked a hypothetical question:  “Would you cater a gay wedding?”  When the employee answered “no,” there were threats and the insistence that the company had no such right, to withhold service.

In the case of the ring-maker, the seller kept quiet and actually performed the service being requested, and did it so well that the couple recommended the service to others.  But the business is now in trouble for doing precisely what the pizza shop was blamed for failing to do:  shut up and provide the service.  This is exaggerated, and I don’t endorse all of its claims, but the argument (and the comparison to Nazis, which is obligatory) is on point.

Another commentator has this version of a Monty Python sketch:

Customer: We are a lesbian couple who would like you to make us a wedding ring.

Business owner: Okay. I do not support gay marriage, but I will serve you as anybody else. This, I understand, is how it works.

Customer: You can’t deny me service simply because you hold different views from mine.

Business owner: Indeed. I have no intention of doing so. Society is better off when our differences remain private.

Customer: Okay, let’s do business.

Business owner: Great.

Customer: Your private views are disgusting. You can’t make me do business with you. Give me my money back or I’ll unleash the kraken.

Since there is a problem with (a) refusing to provide the service AND a problem with (b) providing the service, politely, and professionally and to the satisfaction of the customer, the only conclusion is that we are criminalizing beliefs and private actions.  Which is supposed to be the defense of SSM in the first place:  people can do what they want in their private lives.  The right of gay folks to marry is a right of association, which I defend.  The same right, the very same right, gives people who disagree with SSM the right to refuse to participate in business transactions, or to express contrary views, without legal sancton or extra-legal vigilante threats.