And I believe that the subset of the gay-rights movement intent on destroying their business and livelihood has done more harm than good here—that they've shifted their focus from championing historic advances for justice to perpetrating small injustices against marginal folks on the other side of the culture war. "The pizzeria discriminated against nobody," Welch wrote, "merely said that it would choose not to serve a gay wedding if asked. Which it never, ever would be, because who asks a small-town pizzeria to cater a heterosexual wedding, let alone a gay one?" They were punished for "expressing a disfavored opinion to a reporter."

To what end?

Proponents of using the state to punish businesses like this often draw analogies to Jim Crow. Julian Sanchez has persuasively addressed the shortcomings of that argument (even presuming that opponents of gay marriage are motivated by bigotry):

...The “purist” libertarian position that condemns all anti-discrimination laws, including the 1964 Civil Rights Act, as a priori unjust violations of sacrosanct property rights is profoundly misguided and historically blinkered. We were not starting from Year Zero in a Lockean state of nature, but dealing with the aftermath of centuries of government-enforced slavery and segregation—which had not only hopelessly tainted property distributions but created deficits in economic and social capital transmitted across generations to the descendants of slaves. The legacy of state-supported white supremacism, combined with the very real threat of violence against businesses that wished to integrate, created a racist structure so pervasive that unregulated “private” discrimination would have and did effectively deprive black citizens of civic equality and a fair opportunity to participate in American public life.

We ultimately settled on rules barring race discrimination in employment, housing, and access to “public accommodations”—which, though it clearly restricted the associational freedom of some racist business owners within a limited domain, was nevertheless justifiable under the circumstances: The interest in restoring civic equality was so compelling that it trumped the interest in associational choice within that sphere. But we didn’t deny the existence of that interest—appalling as the racist’s exercise of it might be—and continue to recognize it in other domains. A racist can still invite only neighbors of certain races to dinner parties, or form exclusive private associations, or as a prospective employee choose to consider only job offers from firms run or staffed primarily by members of their own race. Partly, of course, this is because regulations in these domains would be difficult or impossible to enforce—but partly it’s because the burden on associational freedom involved in requiring nondiscrimination in these realms would be unacceptably high.

Some of the considerations supporting our limited prohibition of racial discrimination apply to discrimination against gay Americans. But some don’t. Sexual orientation, unlike race, is not transmitted across generations, which means a gay person born in 1980 is not starting from a position of disadvantage that can be traced to a legacy of homophobic laws in the same way that a black person born in 1980 is likely to be disadvantaged by centuries of government-enforced racism. We don’t see the same profound and persistent socioeconomic disparities. Sexual orientation is also not generally obvious to casual observation in a commercial context, which as a practical matter makes exclusion more costly and labor intensive for the bigot. And while I’ve seen any number of claims that allowing private orientation discrimination would give rise to a new Jim Crow era, the fact is that such discrimination is already perfectly legal in most of the country, and it seems as though very few businesses are actually interested in pursuing such policies.

Rather, the actual cases we’ve been hearing about recently involve bigoted* photographers or bakers—who run small businesses but are effectively acting as short-term employees—who balk at providing their services to gay couples who are planning weddings. (I take for granted that gay marriage should, of course, be legal everywhere.) What’s the balance of burdens in these cases? The discrimination involved here doesn’t plausibly deny the gay couples effective civic equality: There are plenty of bakers and photographers who would be only too happy to take their money. Under the circumstances, the urge to either fine or compel the services of these misguided homophobes comes across as having less to do with avoiding dire practical consequences for the denied couple than it does with symbolically punishing a few retrograde yokels for their reprehensible views. And much as I’d like for us all to pressure them to change those views—or at the very least shame them into changing their practices—if there turn out to be few enough of them that they’re not creating a systemic problem for gay citizens, it’s hard to see an interest sufficiently compelling to justify legal compulsion—especially in professions with an inherently expressive character, like photography. In short: Yes, these people are assholes, but that alone doesn’t tell us how to balance their interest in expressive association against competing interests at this particular point in our history.