Equality of protection vs. protection of equality

The Masterpiece Cakeshop Case Is Not About Religious Freedom

But Masterpiece has nothing to do with religious freedom. It’s about enshrining a freedom to discriminate.

She's right.

But liberal dogmas about a duty of the federal government to compel provision of service remain contentious, as well as liberal dogmas about its constitutional authority and right to do so.

The status quo ante, before liberals created this normal, still new as of the 1960s, was one in which the states did not compel anyone to provide service to anyone, but rather in some cases in some states actually forbade provision to persons belonging to some groups, or heavily intruded on just what services could be provided.

Those laws, generally but not only state laws (think of legally mandated segregation in the District of Columbia), interfered with the liberty of service providers by requiring them to deny service, or deny service on equal terms, notably but not only to black people.

These laws did not protect any class of either service providers or people seeking services; hence they did not conflict with any requirement that persons or classes of persons be equally protected.

All the liberals' favored identity groups enjoyed the same protection as anybody else, whether they provided or sought services, which is to say, none.

And yet, the now normal was created by judges and politicians claiming that laws mandating service for the increasingly numerous identity groups listed by liberals, and for no one else, were required in order to guarantee them, exactly, the equal protection of the law.

But it is one thing to say the law must protect individuals equally, if at all.

The 14th Amendment clearly requires exactly that.

It is another to say it must impose or create equality among individuals, or among those belonging to specified groups, in some or any regard or sense.

And that is exactly what liberals want the law do, to require that service providers treat individuals belonging to specified groups equally, if they seek services, as regards provision of those services.

That is what they have demanded since the 1960s, taking up an altogether mendacious reading of the 14th Amendment to which some blacks but also others subscribed as early as the Reconstruction Era, based on what the partisans of so-called "Radical Reconstruction" actually ultimately wanted and sought to bring about, against the relentless and violent opposition of Southern whites and their leaders, so far as they could, that everyone be equally accepted, equally treated, in political, social, and economic life.

Enter, the notion of the Living Constitution.