About two years ago, the baker who refused to sell a wedding cake to a gay couple for their wedding was in the news. He’s baaack! Are individual proprietors free to refuse their services to others on any basis they choose, even if it’s discriminatory? Is it OK to refuse to serve Jews? Or Mormons? Or blacks? Will the free market correct itself? In other words, should we simply boycott businesses we believe are discriminatory?
Since this debate continues to make the rounds, let’s break it down.
Free Markets
This is mostly a debate about free markets vs. the role of governments to protect all citizens. Accordingly, the opinions often coincide with party lines. Particularly those who are libertarian believe in the power of free markets to correct themselves. People will boycott companies they find objectionable, so the market will correct itself if it doesn’t align with public sentiment. Unless there is a really great Groupon deal anyway.
Myth: The free market is self-correcting in time. Intervention in free markets creates new problems.
Reality: History has shown that free markets do not eliminate or usually address discrimination to a sufficient extent to stop systematic disadvantage. The free market is full of individuals who do not act rationally, and prejudice is certainly irrational. Jim Crow flourished under free markets.
Rights of Individuals
Some believe that the rights of business owners to discriminate are equal to the rights of individuals to have access to goods and services. In both cases, the rights of individuals are considered paramount. However, individuals who own businesses are not individuals in the same sense consumers are. They are providers of goods to the public; corporations aren’t people, my friend. Once they advertise their services, they cannot then refuse to provide those services to protected class individuals.
Myth: Businesses can refuse services to people for any reason. No shoes, no shirt, no service.
Reality: Consumers who belong to protected classes (based on religion, sex, race, and in many states sexual orientation) have demonstrated that they have suffered unfair and disproportionate discrimination from businesses and employers giving them protected class status. To remedy this, businesses cannot refuse services to a protected class on the basis of that class.
Business Owners are People, Too
The smaller the business, the more likely the business owner conflates him or herself with the business itself. In these scenarios, business owners want to claim rights afforded to individuals for their businesses, rights such as free speech, etc. This may work for a person selling Avon products out of their home. Once a business begins to advertise to the public, though, the line is crossed. A public good has been offered.
Myth: Small business owners aren’t really corporations and don’t have the same rules. They should have the same rights as individuals.
Reality: Advertising a public good makes you subject to the laws (hiring and providing services) surrounding protected classes.
Cakes Are a Luxury
People have rights to life, liberty and the pursuit of happiness. Denying someone a wedding cake isn’t the same as denying basic rights. Cakes are a luxury, not a right.
Myth: Those who provide non-essential goods or services shouldn’t be obligated to sell them to people they don’t like. It’s not like a hospital or a school. Cakes are optional.
Reality: When you advertise to the public, you can’t discriminate against groups that have protected status, regardless of the good or service you are selling. However, you may not be required to hold inventory of specialty items like gay couple cake toppers. But you can’t withhold your normal products from a buyer on the basis of sexual orientation where sexual orientation is a protected class.
Separation of Church & State
Some feel that this issue is an infringement on religious belief, that those who want to refuse services are moral objectors, and that we need to respect their right to make a moral stand. We shouldn’t force people to act against their religious beliefs, whether it’s an employee or a business owner.
Myth: Just as religions are exempt from doing things that violate their teachings (e.g. not forced to hire male clergy, not forced to hire a priest from another religion), every religious adherent should be protected from violating their religious principles.
Reality: Churches have legal exemption from anti-discrimination laws, but businesses do not. Individuals who work at a business can claim that the business is asking them to do something against their conscience, but then they may not be eligible to do that job; if reasonable accommodation can be made (e.g. assigning to other duties), then this provides a win-win solution. But when it comes to offering goods to the public, a business owner can’t simply refuse to accommodate if the reason falls under a protected class.
The “Protected Class” Shopping Cart
Then, isn’t every form of discrimination just a protected class? Where does the protection end? What if I dislike saxophonists or Aussies?
This particular argument reminds me of an experience several years ago. The company I was working for was very committed to diversity, and there were several diversity networks to create awareness around the interests of women, racial minorities, Christians, and older employees. A group of employees in our Salt Lake City office felt overlooked and wanted to begin a White Males group. As parents who are asked on Mother’s Day why children don’t get their own special day, the answer to this question is basically “Every day is Children’s Day.” The point is that privileged groups, groups that cannot demonstrate they are targets of discrimination, are not a protected class because they don’t require special protection. The only valid question in the case of the gay wedding cake is whether homosexuals are a protected class or not, not whether we should open the floodgates to discrimination or cut off all discrimination.
Myth: All discrimination is bad, so it should either all be allowed or all eliminated. It’s religious discrimination to make the baker violate his principles.
Reality: Only demonstrated systematic disadvantage against a legally protected class is against the law. It’s legal to discriminate against Australian saxophonists, whether it’s right or moral or not. Discrimination is legal until a class demonstrates (through civil rights movements, etc.) that it needs to be afforded protected class status. So the only real question is whether sexual orientation is a protected class or not.
There Goes the Neighborhood!
Why would someone want to patronize an establishment that doesn’t want them? Why not just go to another baker? For that matter, why not move to another town or another state? Why not just go where there are more people like you?
Myth: Gay people should go where they are wanted, not continue to push for acceptance from people unlikely to give it.
Reality: Gay people are born everywhere. They have families everywhere. They aren’t necessarily independently wealthy any more than anyone is with the resources to just move wherever they find acceptance. It’s not fair to ask them to live as second class citizens in their own communities. They are fully integrated into society, not living on a leper colony.
Expect Bad Service
If you push someone to service you when they don’t want to or feel it is their right not to, they will probably provide you with bad service.
Myth: It’s better to be turned away than to have your waiter spit in your soup. Forcing business owners to act against their beliefs hardens their feelings toward those minorities.
Reality: Being denied service entirely is worse than reluctant service and paves the way for more exposure to minorities that creates more empathy that in time results in less discrimination and better service for all. You can’t force people not to feel prejudice, but you can force them to act without prejudice. People who feel prejudice will not stop acting with prejudice without being forced.
Tit for Tat
Isn’t this just discriminating against “Christian” business owners who feel that they are being forced to contribute to the downfall of society?
Myth: Making it illegal to discriminate unfairly punishes those who believe homosexual behavior is wrong.
Reality: There are natural consequences for behaving in a prejudiced or bigoted manner, and there are legal consequences. Consequences resulting from mistreating other people does not constitute discrimination.
Choices, Choices
Why do gay people get all the choices, but Christians are the ones who can’t choose to whom they provide service?
Myth: Being gay is a choice. Being gay in a heteronormative world is a choice.
Reality: Being gay isn’t a choice just like race isn’t a choice. We can all choose to obey or break the laws. We can certainly lobby to change the laws. But we can’t break the law and escape consequences for it. One of the tenets of our faith is that we believe in following the laws of the land, even if they aren’t the ones we would enact.
For a trip down memory lane, here’s a pre-civil rights quote from David O. McKay:
“I said that I did not like to see a law passed which will make the Hotel men violators of the law if they refuse to provide accommodations for a negro when their hotels are filled with white people, or restaurant men made violators when they decline to serve colored people. I said that businessmen ought to be free to run their own businesses, and not become law breakers if they choose to employ certain people; that if we have such a law as that, then it is unfair to the majority of the citizens of this country.” (June 19, 1963)
But it’s no longer 1963. It’s no longer legal to discriminate against those individuals in protected classes who have demonstrated that they have been systematically disadvantaged.
Let’s see what you think.
[poll id=”457″]
Discuss.
Wheat & Tares 
HG – Great post. It does make me think of the moral/spiritual issues created by the Priesthood ban. It was before my time, however I wonder what the effect all the talk about people of African decent were less worthy, less righteous etc. Did Church members discriminate against them? Is this analogous to the ban (by some?) on selling gay people a cake?
My personal take on this topic….(stay with me on this one) To the shop owner, how is being Gay ANY DIFFERENT than being a liar, a drink driver or someone who takes the Lord’s name in vain. The person refusing service is presumably a Christian and has an issue with that particular type of sin. If that is their position, you’d almost need a Temple Recommend interview to get service. ALL sin is as scarlet. How (to them) is being gay any different to any other sin – maybe more serious, but not different. My thoughts…there is a massive inconsistency here. Either serve only perfect people or serve ALL of us sinners.
Also one of my mates is a Sax player here in Australia – I’ll let hem know he’s next on the list…poor bloke…
You’ve conflated being with doing. These vendors are not discriminating against people, as they are glad to provide other services. Some, as mentioned in the article you cited, also have gay employees. There have also been instances where gay vendors have refused to provide their services to an anti-gay event.
You could try arguing that there’s no difference between gay marriage and non-gay marriage, but as far as I know, there’s no such thing as a protected action.
I am married to an Aussie clarinet player. Glad we missed that classification. IRL, I have thought long and hard about different groups of people and serving them. I think I would accept anyone who came to me seeking services, and I would pray very hard how best to serve them. I am a birth worker; the work I do is extremely personal. Is it possible to have a conversation with the person and say something like, I may have assumptions built in, please help me to see where my assumptions err?
Also, I can’t say that everyone should obey the law. What if the law is immoral or unrighteous? And I don’t mean ones like this.
The gay cake issue has two aspects that are routinely conflated but should not be. The identity of the person ordering the cake should be irrelevant; one has no basis for refusing to bake a cake because the requester is gay, black, atheist, or whatever.
The nature of the cake decorations, on the other hand, is a form of speech and decorators should have the right to refuse to facilitate speech they object to. Democratic campaign consultants cannot be forced to take Republicans as clients, and vice versa because that would violate their free speech rights. Similarly, atheist cake decorators should not be compelled to write “Jesus saves” on their cakes, and Christian cake decorators should not be compelled to write “God is dead” on theirs. And anti-gay-marriage cake bakers/decorators should not be compelled to write “Congratulations Bill and Ted.”
Now if they make the best tasting cakes in town, they should not be allowed to refuse to bake the cake just because it will be used for a gay wedding. And if the decorations would work for a mixed-gender wedding as well as a same-gender wedding, they should do the decorating. But if the decorations work only for a same-gender wedding, they should be able to insist that somebody else do the work
Are individual proprietors free to refuse their services to others on any basis they choose, even if it’s discriminatory?
Yes – or, rather, they are not, but they should be. The idea that a privately-owned business is a “public accommodation” because it offers its goods and services to the public is only true because it’s been so defined by statute. It’s sophistry designed to allow governmental/legal action to force bigots to behave the way we’d like them to. As reprehensible as their actions are, they have a right to them. That’s what freedom means.
The free market is full of individuals who do not act rationally, and prejudice is certainly irrational. Jim Crow flourished under free markets.
The first sentence is mostly true; the second demonstrably false. Jim Crow laws were not the result of free markets; they were, by definition, a constraint upon free markets. They were legally-enacted racism, not voluntary refusals to associate. Blacks weren’t excluded from certain places of business, certain parts of town, and white rest rooms because people chose freely to exclude them. They were excluded by law. “The market” was not allowed to operate. Shadow economies (I hesitate for obvious reasons to call them “black markets”) did operate in which the races traded much more freely, but these were not overt because they would have been illegal. Just as happens now in substances and transactions which are proscribed by governments, people did what they wanted to do anyhow; they just risked more to do it.
The first “myth” is not actually a myth; the tired canard that government intervention saved us all from free market racism is long past its expiration date.
One reason, I think, that I find myself being such a strong supporter of the rights of fools to be fools is that it becomes so easy for us to “gratify our pride [and] our vain ambition,” convincing ourselves that we know how others ought to think and act, that it is far too tempting to “exercise control or dominion or compulsion upon the souls of the children of men,” especially when we can leverage the coercive power of government to whip people into line (that’ll show the recalcitrant bastards). Our history – as the human race, as a nation in the US, and as a church – is not pretty in this regard.
LDS Aussie writes, eloquently,
I agree completely. For myself, I’ve often said that if I couldn’t be around sinners, I couldn’t even live with myself, much less the rest of you! 🙂 What you’ve said here is a great point to make in a lesson, a great thing to teach your kids, and a great moral truth to help people repent and change.
What it is NOT is a legal justification for the creation of protected classes (regardless of their talents on the sax), and grounds for the governmental coercion of behavior.
When I read these sorts of arguments, I can’t help but think, “that’s all very well and good when it’s something that doesn’t violate your moral code, but what will you do next time, when it is?”
While I didn’t agree with them at the time (and still don’t, really), this proves the point of those who opposed making sexual orientation a protected class. It also adds justification to the slippery slope arguments.
For me, personally, I think the line is this: there is a difference between a SERVICE and a PRODUCT. If a bakery offers from-the-case cakes, they cannot refuse to sell those cakes to a gay couple. If that couple wants a custom service performed (such as a custom designed cake, or an inscription, etc.) the person providing that service should be allowed to apply their personal morality to whether or not they perform that service.
My reasonings are twofold:
First, it’s plum stupid to force someone to perform a service they don’t want to perform. Making a fertility doctor serve you (female) and your wife when they are morally opposed to your marriage is the height of idiocy. There are so many ways a person could sabotage that service that you wouldn’t even know about. You’re better off knowing that someone is opposed to performing that service for you than forcing them to hide their feelings and never knowing if you are being sabotaged somehow. (Spit in the cake sort of thing.) Is that Christian? Of course not, but it is very likely according to human behavior.
Secondly, speaking as a designer, in order for me to create something custom for someone I have to put a part of my heart and soul into that creation. Creativity comes from a part of who you are. Even if my intentions, as a designer, are pure, if I don’t believe in what I’m doing I am incapable of giving it my best work. If I had a friend who was marrying someone I thought was abusive, for example, and I was asked if I would photograph her wedding, it HAS to be up to me to see if I can weigh my love for my friend above my intense dislike for her choice. If I’m forced to do it, the photos will be substandard, even if I try my very best to give it my all. That’s just the way skilled services work. Trying to force some other outcome will never work, no matter how much you might want to restructure reality.
Now, I do think that on a case-by-case basis, there may be some need for the government to temporarily step in and force such things. If, for example, I am the only baker in a reasonable radius, and there was no other way for a gay couple to obtain a cake for their wedding, there might be reason to say, “Sorry, but the economy you operate in only supports one baker, and that is you, so you have to provide a cake for this couple if they ask it of you.” But that allows full and open honesty: the gay couple knows that the baker doesn’t want to make the cake for them, and if they are smart (and not merely trying to throw a political temper tantrum) they would choose to use an amateur cake made by someone who supports and loves them.
But that’s the underlying thread to all of this that few people acknowledge: it isn’t about the cake. If it were about the cake, it would be USUALLY easy enough to go somewhere else to get the cake. This is about using special interest groups with significantly more power than the small business owner to bring their muscle to bear on them to make a political point.
That is bullying.
All this boils down to the conflict between: “being gay is a choice!” and “being gay is not a choice!” Evangelicals believe it is a choice. This belief is part of their religious identity. You cannot argue that they are discriminating in the same way they might discriminate against black people.
And it’s not easy to prove that being gay is always a choice. Gays themselves admit that some people choose to be gay. Some are bisexual and choose their homosexual side, others choose the heterosexual side. In some cases people try homosexuality and like it better so they switch. Gays acknowledge this is sometimes the case, and they believe it is the right of anyone to choose their sexual orientation if that choice presents itself. But of course there is also evidence, testimonial and empirical that homosexuality is not a choice in many cases.
In the case of the baker, should he be able to discriminate against those gays who have chosen to be gay? There would be no way for the gay couple to prove to him they had not chosen it. And both can point to evidence that it is sometimes a choice, and sometimes not a choice.
So I believe the baker should be given freedom to act as he wishes, within the context of this fluid, complicated issue.
Personally I think the shop owner sounds like a rigid self-righteous person with a stick up his patoot who would be best avoided. But the news article also makes clear that he’s consistent in his policy of bringing his religious life into his business and is willing to accept the consequences. That’s worth something.
So is the principle of equal civil rights for everyone vigorously applied and defended.
Anyone seen Solomon? At least a cake is more easily divided than a baby…
I would be just as happy for the cake bakers to be able to discriminate and have them publicly labeled as bigots. If it were me, I would not want that person being a part of my wedding anyway. Why make such ugliness part of a joyous occasion? But then, I have not been beaten up, as gays historically have.
“But then, I have not been beaten up, as gays historically have.”
And the same principle that this baker is employing has been used in other circumstances to deny people medical services. Sometimes medical services not otherwise available in any immediate or practical way.
The arguments seem limited to Christians vs gay. How well is everyone prepared to enforce this amongst the Muslim community, particularly those who tend towards Sharia law? The arguments will be at a much higher volume level and with even more fiery intensity.
As I understand it, Utah’s liquor laws prohibit the sale of some types of alcohol in “public establishments”; so bars here are technically “private clubs” and you have to fill out a membership and pay a fee in order to join before you order your first drink there.
I wonder what would happen if a bakery set itself up on a similar system–advertising as “John’s Fine Cakes – An Exclusive Bakery”, and only sold to “members” who had filled out a free application including a “declaration of faith”?
In fact, what if someone took the idea further and set up a “Christian Weddings Association”, and a variety of businesses (photographers, florists, bakers, decorators, bands, etc) advertised themselves as catering to CWA members?
Is a “private economy” among conservative Christians (or any other group) desirable, or even legal?
“You can’t force people not to feel prejudice, but you can force them to act without prejudice. People who feel prejudice will not stop acting with prejudice without being forced.” So much for individual agency.
How about if we only limit discrimination to essential services, as we see with the Fair Housing Act, etc? It seems like it would be simple enough to draft laws that enable all to obtain medical care, utilities, housing, and basic food. But a wedding cake is not a “necessary service,” nor would forcing a wedding planner to plan a gay marriage service be “essential.” Surely the market would be able to fill in the gaps, presuming there really is a need. Perhaps the open market would self adjust if we separated the essential services and products from those that are not.
Overall, I agree that refusing to bake the cake is a problem. I understand that in many ways it is a symbol of larger, systemic discrimination. There are two main issues that come to mind for me when I read this OP.
First, I don’t agree with is the idea that protected class can be defined in such a way that only one group is protected. When gay bakers refuse to produce a cake for an event that is supporting traditional marriage, they are in violation of the very principle that they accuse this Christian baker of violating. When the law forbids discrimination based on sex, a person can not be denied a job simply because she is a woman. At the same time, a man can not be denied a job based on his maleness.
Another problem is that we are failing to distinguish between the being gay (whether defined as experiencing same-sex attractions or forming one’s identity around those attractions) and the act of celebrating an act that some religious people believe violates God’s law. Choosing not to create a cake for a gay wedding is not the same as refusing to serve a gay person.
I haven’t heard (or read) an argument that addresses both of these discrepancies together. I’ve heard people argue that in the first example, the gay baker can refuse because his refusal isn’t a refusal of serving straight people, just a refusal to support an event that promotes an ideology that he/she doesn’t like. But then how is that different than the Christian baker saying he’s not refusing the service based on the person being gay, but because it supports an event he doesn’t agree with. I’ve also heard people respond to the second issue with the argument that marrying a person to whom you are attracted is part and parcel of the pursuit of happiness when a person is gay and is therefore as much a part of the person as the orientation. However, they then want to limit that claim to to a specific subset of the protected class.
SilverRain says in #8, This is about using special interest groups with significantly more power than the small business owner to bring their muscle to bear on them to make a political point.
That is bullying.
Which is basically what I had said in #6, except she was much more concise and eloquent. Of course. Very well put. The government is the most implacable of bullies.
Nate says (#9), All this boils down to the conflict between: “being gay is a choice!” and “being gay is not a choice!”
No, it does not. It boils down to whether or not the guns and prisons of government should be used to bully idiots into acting as if they are not idiots. (Note that I do not say, “bully them into not being idiots,” as that is probably impossible.) Whether or not they are right is immaterial. In essence, proponents of that action are saying that they have the right to coerce the idiots because the idiots are wrong. I’m saying that government does not have that right, and to believe that it does is a deeply disturbing and illiberal viewpoint.
How well is everyone prepared to enforce this amongst the Muslim community, particularly those who tend towards Sharia law?
The classic formulation of the (classical) liberal viewpoint is that you are free to swing your fist, or your cake, up to the point where the other person’s nose begins. Those parts of sharia law which, for example, condone stoning people to death for adultery seem to me to be a pretty clear superimposition of fists and noses. No one is actually hurt by having to find another baker.
Nate: “Evangelicals believe it is a choice. This belief is part of their religious identity. You cannot argue that they are discriminating in the same way they might discriminate against black people.” Well, here’s an unsavory comparison. Mormons who defended the priesthood ban did in fact invent rationales to explain why blacks could not hold the priesthood, namely that although they didn’t do anything wrong in this life, it was a moral failing of their premortal existence. So, again, how is that fair and legal to create a second class citizenry based on mental gymnastics created to support a belief system that is essentially someone’s prejudice?
JimD is onto something from a legal standpoint. It’s OK for “private” enterprises to act differently than public goods advertised to the public at large.
Kevin L is hinting at some of the complexities of the protected classes. Sex as a protected class is complicated because it can be defined to behavior that discriminates against gender identity (transexuals) or on the basis of physical differences (pregnancy, having endomitriosis, etc.)
Since this is a legal question, though, once gay marriage is legal, discriminating against it becomes a bigger problem. The question of creative design is essentially the argument about “Bad Service.” Certainly, bad service is better than no service. But it’s also the “Pat & Chris” problem. A cake decorator who refuses to write “Congratulations Jeff & Alan” but is OK with “Pat & Chris” is now discriminating on the basis of how gender-neutral one’s name is!
“Since this is a legal question, though, once gay marriage is legal, discriminating against it becomes a bigger problem.”
Oh? Last I knew, KKK rallies were legal, and it’s perfectly acceptable for a Jewish bakery to refuse service to them. Or, if you really want to invoke protected class, should a feminist baker be allowed to refuse to make cakes extolling a mens rights group?
“The arguments seem limited to Christians vs gay. ”
Not so. Pharmacists have refused to fill prescriptions, doctors have refused legal abortions and Catholic hospitals have refused to give treatment to pregnant women in distress when they felt the course of treatment put fetuses at risk.
I have a question for you, Hawkgrrl….
What is the end game? What is the goal in forcing people to perform services they don’t want to perform for any reason in order to offer that service at all?
I guess i ask a simpler question;
Why not just hold your nose and make the cake? You’re in business to make money and their money is as good as anyone else’s.
If you are going to pass judgement on some people’s morality as you see it, why not have everyone fill out a questionnaire to insure they are as worthy of your cake as you think they should be.
Jeff spector
a group from onenewsnow.com did an experiment where they went to get a own businesses and ask them if they would make t shirts or cakes with messages saying that gay marriage was wrong. they were cussed out they were flipped off
The real fun is going to start when one of these lawsuits is filed in–say–Nevada; by a lesbian who tries to retain the services of a straight call girl and is rejected.
I once had a pharmacist in a small southern Utah town refuse to fill my prescription for birth control in the mid-90s when he learned I was single (nevermind that I was not sexually active). I was visiting my grandparents at the time and taking the pills due to a hormonal imbalance, but the pharmacist wasn’t buying it.
Absolutely unbelievable. If you don’t want to dispense lawfully prescribed medicine, don’t be a pharmacist. If you don’t want to bake cakes for gay people or other “sinners,” don’t be a baker. At least don’t cry about it when word gets out about your poor service and your business suffers.
Jeff Spector: I think the point is that the individual should have the right to decide if their moral code allows for “holding nose” or not. The point is that no one else—especially the government via law—should have the right to force someone to “hold nose” in order to make a living with the skills they have labored to learn.
Ethically, I think “holding nose” in order to take someone’s money is unethical. The most ethical path for me, as a creative, to take is to decide for myself if I can find something in the event I can celebrate so I might offer the best possible product to that person. If their cause or purpose is something I can’t get behind, I owe it to them ethically to tell them that so they can find a better service provider.
Morally, I would hope that I would be able to discern on a case-by-case whether or not that instance is something I can do or not. Morally, I would hope that if I found myself unable to “bake the cake,” I would find a way to still show Christian courtesy and kindness to the person I disagreed with. Morally, I would hope that I would follow the dictates of my own conscience rather than doing as you suggest. Not everyone finds it palatable to sacrifice personal beliefs on the altar of money.
But I don’t believe that either ethics or morals in regards to an individual providing a service can be black-and-white legislated without paying a price. Does it not seem legally risky to you to say, “You can only offer your hard-earned talents for money if you are willing to give them to everyone who asks”? That is the equivalent, to me, of saying “You can believe in whatever you want, but you are not allowed to act according to those beliefs, even when it comes to your own skills, body, and talents.”
Mrs R: that is the difference between a product and a service.
What is the ideal situation? Suppose the baker and the gay couple are both in the celestial kingdom, will they still have this problem?
It seems to me it is a problem of lack of love/respect, and how can that be a result of being a follower of Christ?
It takes a long time but it is necessary, if you want to move to a society where all are respected, and treated equally, for government to lead the way, and require bigots to behave in public as if they are not bigots. It may take a generation or 2 but eventually people will take pride in not being bigots. hopefully.
The police shootings in the US show that it will take a generation or 2, or perhaps a different culture.
Are similar questions asked in countries other than the US. I am not aware of such discussion in Aus, I think we just accept that it is not acceptable to discriminate in this way.
Geoff-Aus – I’m not personally aware of such issues here in Australia – which is not to say that it doesn’t happen. To be honest, I would be very surprised if it did. Broadly Australian society is (now) fairly gay friendly with one of the largest Mardi Gras in the world. My feeling would be that the tide of public opinion would work against such a decision and the shop would go out of business. The only similar type of situation here involves the Max Brenner Chocolate shops. Some elements of our community have felt the need to boycott the shop due to its Israeli beginnings. Pro Palestinian groups have facilitated several protests at a number of stores, however my feeling is that the public, by and large, don’t subscribe to such protests. Inside the church though, the vitriol about ANYTHING to do with homosexuality or gay marriage is embarrassing.
No, SilverRain, your product v. service analogy isn’t the answer. The pharmacist wasn’t producing the pills, he was performing a service counting the medicine, dispensing it, and processing my insurance. Under your theory above, you’d uphold his right to not perform that service and withhold my medicine/cake.
Geoff-Aus:
The baker may look back and think he may as well have just saved everyone the trouble and baked the darned cake. But then again–when the “gay couple” enters into the Celestial Kingdom, they will not be “a couple” and most certainly will regret having ever flouted the law of chastity by entering into a sexual union with someone else of the same gender. And I suspect they’ll also feel a little sheepish of having tried to browbeat a third party into joining their celebration of that sexual union.
I’m sympathetic to SilverRain’s product v. service approach — but to me, it isn’t just simple service — rather, it is artistic expression in the service — a cake on the rack is a product — but the artistic expression that I suppose was asked for is not a product, and one cannot force an artist to produce something contrary to his or her conscience. A singer should not be forced by the law to sing a pro-gay ballad at a gay event, not a baker be forced to produce a gay-themed cake.
D & C 134:2 “We believe that no government can exist in peace, except such laws are framed and held inviolate as will secure to each individual the free exercise of conscience, the right and control of property, and the protection of life.”
The baker in question has run afoul of a law that basically states that he has to perform an act of labour that goes contrary to his conscience. He believes that marriage is between a man and a women, and a same-sex marriage is a deviation from that standard.
As such, this runs contrary to two elements of D & C 134:2, in that government has established a law that did not secure to the baker the ability to live according to his conscience and neither protects the control of his property (in that the baker is being forced into an exchange of his property that he would not otherwise do of his own free will).
Based on this standard given in D & C 134, I say that the baker was justified in refusing to make the cake and the people who wanted the cake made, and resorted to using the force and power of government to get it, were in the wrong.
SilverRain: “What is the end game? What is the goal in forcing people to perform services they don’t want to perform for any reason in order to offer that service at all?” I think the end game is to end discrimination against groups that are systematically disadvantaged, people who are also Americans, who pay taxes, who elect officials just like everyone else.
ji: I think there’s some validity to the question of artistic expression, but that goes to the heart of the “Bad Service” question above. Make a bad cake, maybe get a bad review, and if that’s your thing, hey, go right ahead.
All this talk of products, services, types of company structure…it’s all a bit confusing. See the link below for an Australian politician who knows his cakes – he’ll put us all straight…
Hawkgrrrl, this is one of the best and most thorough explanations and rebuttals of the arguments against civil rights protections for LGBT people that I have ever seen in one place. Concise and very well-done. Thank you!!!
As the manager of a bakery, I am faced with some rather embarrassing and/or offensive requests for both written and decorative subject matter. Sometimes acceptable subject matter is a fine line. Business owners have a right to discriminate when it comes to offensive subject matter to a point. What is offensive to one person may be perfectly acceptable to another. Making a cake for someone who is gay can present little to harm the reputation of the owner unless what is requested is sexual in nature, involves nudity, body parts, or offensive written messages. In cases where the owner is concerned about the reputation of the business or public perception taints his reputation and causes him to lose business, he has an obligation to his customers and business partners to make judgement calls that are in the best interest of the business. The cake topper with two males is possibly not something normally stocked. Breaking up two sets of toppers to satisfy the customer can cost the owner twice because suddenly he now has a lesbian topper left which may or may not ever be requested. If some of his Christian customers see it, they may actually be turned off and take business elsewhere. Sadly, that type of thing still occurs in this day and age. Many times by talking with the customer you can agree to decorate the cake but they have to be willing to purchase their own topper themselves. Refusing service based strictly on a moral, ethnicity or any minority group can present problems. What does a serial killer, sexual deviant, rapist, criminal, paedophile, etc. look like? Like everyone else. If the customer ordered a wedding cake without any reference to a gay lifestyle how would the owner even know one way or the other?
Mrs R. I don’t live in a world where counting out pills and retailing them is a skilled service, but perhaps that is a relative perception.
Hawkgrrl….OK, if that’s the end game of legally requiring someone to provide their services, it’s doomed to failure. All that will do is cement opinions and prove right those who oppose gay marriage: that gay rights to live THEIR lives according to the dictates of their conscience infringes on the rights of those who believe differently to live according to theirs.
This is not even close to the former Jim Crow LAWS that used to be in place in many states and localities. I agree with #6 Grey Ghost, Jim Crow was a distortion of the free market. Ultimately, the position of the gay couple that wanted the cake baker’s service is a major dislocation of the free market as explained by Grey Ghost, Silver Rain, and others above.
I agree with the conclusions of #34 Jason, but he states that the baker is going contrary to a law. I am not aware of any law that states that he must provide this type of service. There are court rulings that seem to insist upon this, but no law that clearly states this. This is another dislocation of our society, since so many “legal” disputes point to court rulings only and not any actual laws as their basis.
Great discussion that you have generated, hawkgrrrl.
I personally find this issue more “grey” than some. While I believe that businesses operating in the public market should be required to follow the law (in this case, anti-discrimination law), I’ll admit that I cringe a bit whenever I read about gay or lesbian couples suing a business for refusal of service. Then I substitute “African American” for “gay,” and realize that almost no reasonable person would genuinely believe it was morally acceptable to refuse service to African American persons.
The “being vs. doing” dichotomy is sophistry at its best. In Loving v. Virginia, they argued that they weren’t discriminating against people, but rather against an action—-the act of a white person marrying an African American person. The courts wisely called “bullshit” on such word games.
Regardless of what legal remedies might exist, I personally believe that the proper course of action after a refusal of service like this is ample publicity. If I was refused service at a business because I was gay, you can bet I’d have it all over Facebook, Yelp, and every other venue I could use. This is what happened to one of the Oregon bakeries, “Sweet Cakes by Melissa.” Sure, the state went after their law violation, but the bigger impact was the negative publicity they received in a relatively liberal state. Once it became public that this business treated customers in a discriminatory fashion, their clientele largely evaporated, to the point that they had to give up their storefront and operate out of their home kitchen. The business owners, of course, declared this “bullying” by the eee-vil gays, but it was precisely the sort of “free market” operation that many conservatives advocate.
Another bit of food (no pun intended) for thought: If this was truly all about religious belief, wouldn’t we expect the baker to refuse service to anyone who wanted a cake to celebrate something that violated the baker’s religious beliefs? A local community newspaper tested this supposition by contacting both of the Oregon bakeries which had denied service to gay couples. Various employees of the paper called the bakeries, requesting cakes to celebrate (1) a second baby born out of wedlock, (2) a divorce party, (3) the awarding of a research grant for cloning human stem cells, and (4) a pagan solstice celebration, complete with a big, bright green hexagram on the cake. While different denominations may differ on some details, these seem like things that a “devoted to his/her Christian ideals” baker might shun, right? Not so fast—-Sweet Cakes cheerfully quoted prices and ideas for each one, while Fluer Bakery offered quotes on each one that the newspaper employees were able to contact them on.
http://www.wweek.com/portland/article-20698-the_cake_wars.html
Does the “devout Christian” baker refuse to sell wedding cakes to those who divorce and remarry? Jesus had more to say about remarriage after divorce than he ever did about homosexuality. What about Mormon-owned groceries that sell alcohol or tobacco products, yet would piously refuse to allow their in-store bakery to prepare a wedding cake for a gay couple?
Life doesn’t give us a guarantee of freedom from jerks and offensive people. I’m not sure why being in business should.
The baker has what seem to be sincere beliefs and he seems to apply them consistently. But he’s come up against someone’s basic civil right. Wouldn’t it have been nice if the opposing parties could have moved on without bringing it to this point?
But when you stack up an essential civil right with offense, it’s hard for me to see how the courts could back away from the civil right.
The baker believes he has a civil right to his religious belief and, in his personal life, he does. But he’s assuming that he has a version of The Truth® that entitles him to draw a circle around himself and ward off all of life’s uglies when he goes out into the world to do business. Should white supremacists be able to do it? They’re very sure about their essential truth. Should Nazis? They know they’re right. Who should get to define the truths and thou musts and thou must nots for others?
Nick Listeri – The problem with the attempt to “gotcha” the Christian bakers doesn’t work because the questioners did not beforehand know which the bakers would find against their moral code. It assumed what their moral code “should be” and based the results on that. You might as well argue that no “true Christian” would be against gay marriage.
Not too far back there was an article about a lesbian baker who refused to make an anti gay marriage cake. They also got fined, and disagree with laws forcing businesses to serve. Wish I could find the article.
Lastly, almost all of the stories about refusal of service aren’t about refusing to serve the people, they are about refusing to serve the action. They’d served (and employed) gays and lesbians, just did not want to serve for this.
Anything to duck the blatant hypocrisy on display, eh Frank? “Oh, but they might have been that SPECIAL kind of Christians, whose only sin is icky gay people getting married!”
Also, your distinction between people and actions is bogus sophistry, as I already pointed out.
Nick, if you really want to get into the “THOSE people are just mean hypocrites” argument, you’re free to go look up the stories about groups calling gay bakeries and asking for anti-gay services. If you like monolithic groups, then that’s your ticket. It’s not that good an argument, though, as no group is monolithic. You might as well yell at a Mormon baker who declined to make a wine flavoured cake. We’re -all- “SPECIAL kind of Christians”.
As for your “bogus sophistry”, I’d rather not turn this into a Loving v Virginia debate, or a debate equating blacks and gays. Those too quickly turn into serious rage arguments, and the moral rage already here is quite enough for me.
There’s a basic civil right to have a cake?? I know that Marie Antoinette is rumored to have been the first to suggest such a right, but I didn’t know that it had made it into the canon.
You don’t seem to comprehend anti-discrimination laws, Frank. The point is that if a business provides a particular service—such as making and selling wedding cakes—they have to provide that particular service without discriminating against legally protected classes. Evangelical bakers who normally provide wedding cakes don’t get to refuse to supply a wedding cake to a Mormon couple, even if the baker thinks Mormons are evil cultists who are bent on helping Satan damn all of humanity to Hell. A gay Wiccan baker who normally provides wedding cakes doesn’t get to refuse to supply wedding cakes to heterosexual Christian couples on the basis of their religion, gender, or sexual orientation either. Claiming that I oppose the “act” of secretive, non-public wedding ceremonies doesn’t give me a free pass on denying wedding-related services to Mormons–even if I were loony enough to be so inclined.
The whole “personal artistry” argument is likewise faulty. I happen to love wine, and I’ve spent many hours talking with winemakers—enough to know that what they do is every bit as much an “art” as decorating cakes. It involves every bit as much personal devotion and passion to be done well. If I was a winemaker, however, I wouldn’t be allowed to stipulate that my wine couldn’t be sold to Catholics on the basis that doing so would “cause me to participate” in ceremonies I don’t personally believe in.
You’re mistaken in claiming that I was speaking of monolithic groups, Frank. The newspaper article, and my commentary thereon, referred to the owners of two particular bakeries in Oregon. Hardly a “monolithic group.”
Furthermore, the individual who called gay-owned businesses asked specifically for a cake with an explicit anti-gay message emblazoned thereon. That would be an “apples and oranges” comparison to Christians selling a wedding cake to a gay couple. I’ve yet to ever hear of a gay or lesbian couple asking a Christian bakery owner to provide a cake with “Christians are Evil” message written on it in frosting.
As for your other attempt at ducking the facts, it makes me laugh whenever someone wants to argue about the law, but objects to anyone referencing case law which is directly on point. It’s like someone arguing that gravity doesn’t exist, and then telling others “let’s not bring falling objects into this discussion.”
Nick, we seem to be talking past each other. For example:
“The point is that if a business provides a particular service—such as making and selling wedding cakes—they have to provide that particular service without discriminating against legally protected classes.”
The point is that the business does sell different-gendered wedding cakes, but does not sell same-gendered wedding cakes. It probably also does not sell polygamous or any other type of marriage wedding cakes. It wouldn’t have mattered to the vendor where on the gender spectrum, the customer was on (evidenced by previous sales); you cannot ask someone to make what they do not offer.
To your own “personal artistry”, this is like someone going to a champagne maker asking for communal wine. You’d be in your rights to refuse the commission, because it is not for sale. Some would say “it’s all fermented juice, so you should make what is asked” and claim refusal was religious discrimination.
If you want to argue that there’s no difference, that’s a completely different point, as I mentioned way up in #2. If you want to argue that the same arguments were had for interracial marriage, feel free. I don’t agree it’s the same, but you’re quite free to hold that opinion.
And I’m glad someone can laugh. This post isn’t about what the law says, it’s about what people believe is “right”.
Yes, Frank, we all get the fact that you see this issue as having zero significance beyond your personal, idiosyncratic idea of what is “right.” Ergo, you’re willfully incapable of grasping the realities involved, preferring to bask in your delusions while you curse the healthy folks who see through your charade.
Curse? Really? Where?
Look, you can go on about what “the law” says without addressing that it’s different in different places, and far from settled. You can try to talk about gravity, insisting only “bring falling objects into this discussion” will make everything clear when it is much, much broader than that. You can continue laugh and accuse me of being a lone, idiosyncratic voice, “willfully incapable of grasping the realities involved”, but I’m done.
Happy new year.
Myth: a woman who has an impressive business resume can translate that success into social commentary
Reality: said woman has indeed “Come a long way, baby”…to be as much full of herself as what would any so-called “egotistical, sexist male chauvinist pig” (just O’d on “9 to 5” and though I’m STILL not “Fonda Hanoi Jane”, the movie is still a hoot some 35 years later…)
Ok, enough of starting the new year with a jibe, onto to substantive discussion…
Though it’s a discussion that was “settled” (ergo, unfairly, IMO, in the courts, but it was litigated back in the 60’s with regards to businesses having to wait on people of color…), it still comes down to the Government intruding into private business decisions and the ability of individuals to (dis)associate as they see fit. Operating a store front does NOT necessarily impose a duty to take all comers. Of course, is said business truly “private”? Meaning, for example, did the bakery start up his business with an SBA loan? Or, if he has a mortgage on his facility, is it a Government-backed loan? It’s inconsistent to have one’s hand in the taxpayer’s pockets and THEN use those funds in a manner inconsistent with public policy.
This issue, much like the lunch counter sit-ins of some 55 years ago, is far better settled in the “court” of public opinion rather than with the heavy hand of Government attempting to assess “protected classes” and whether a form of behavior goes from being merely obnoxious to unlawful.
Mrs. R, “At least don’t cry about it when word gets out about your poor service and your business suffers” is in fact the proper remedy, or as SilverRain put it, “. . . the point is that the individual should have the right to decide if their moral code allows for “holding nose” or not. The point is that no one else—especially the government via law—should have the right to force someone to “hold nose” in order to make a living with the skills they have labored to learn.”
Hawk asks “how is that fair and legal to create a second class citizenry based on mental gymnastics created to support a belief system that is essentially someone’s prejudice?“, making (or seeming to make) the erroneous assumption that if government doesn’t step in, no solution is likely to develop. There are a couple things wrong with this line of thinking, both from a logical and from a moral standpoint.
First, logically, the example Hawk uses in itself gives the lie to the premise; the LDS Church reversed its position on the PH Ban without intervention from government. Whether you choose to see that as a result of internal moral pressure or divine revelation or both is immaterial; both are legitimate means of change.
Second, logically, the assumption is faulty; no “second class citizenry” is being created. One baker, or some bakers, refusing to bake cakes for gay couples doesn’t mean that all bakers refuse. One church, or some churches, refusing to ordain blacks does not mean that all churches refuse. Most importantly, “classes of citizenship” can seem, experientially, de facto but are actually de jure – even if all bakers refused but were allowed to consent under the law (IOW, if their refusal was not mandated), no separate class of citizen is actually created.
[This is not to negate or downplay the feelings of the individuals affected when they happen to encounter the baker who refuses to bake, or the church which refuses to ordain. However, when we speak of using the coercive power of law, we should be sparing of how we use it. You use it to correct systemic inequity, not individual moral failing. Thus, the proper corrective measure for those hurt feelings is to go find a baker who will bake, not to pass a law to force an unwilling one to do so.]
Third, logically, the assumption is unwarranted; the momentum of social evolution is clearly (best efforts of bigots notwithstanding) in the direction of more tolerance and acceptance. The notion that a high-profile baker’s case, or an LDS Church example from when Hawk and I were in junior high, are representative of the current direction of American social attitudes, is simply inaccurate.
Finally, the assumption of the need for coercion to correct moral failing, as I’ve said before, is a deeply disturbing and illiberal concept, in the literal and classic sense. It is disturbing to see it used, whether the victims are right or wrong. It embodies the tendencies against which the Lord warned us, to which we are all subject, in the 121st section of the D&C. The lesson of that passage is essentially that there are no safe guardians. Quis custodiet ipsos custodes? All of us, all the time, and to be safer, let’s minimize the number of custodes.
It is also a suspect attitude in that moral crises are always used or manufactured/exaggerated by tyrants to justify the extension of social controls. History provides plenty of examples of this, and if you need a practical lesson in it, take an airplane flight.
The baker has what seem to be sincere beliefs and he seems to apply them consistently. But he’s come up against someone’s basic civil right. Wouldn’t it have been nice if the opposing parties could have moved on without bringing it to this point?
But when you stack up an essential civil right with offense, it’s hard for me to see how the courts could back away from the civil right.
Alice, no one has a “basic civil right” to a cake.
You, and in even more detail Nick Literski, seem to conflate the right to marry with the not-a-right to have someone make you a cake. Loving v. Virginia was about state law, not private action.
The cakes for heterosexual and homosexual couples are exactly the same except for the thingie on the top, if in fact one even has human figures, which none of my kids did.
If it were me, I would sell a neutral cake without a figure, let them add their own.
To me, the cake issue is so much easier than the photographer issue, for that reason.
bottom line if you are against gay marriage and do not want to make the cake just refuse to do it and don’t give any reason.
Winifred’s answer reminds me of when a woman in an HR training suggested that if you were interviewing a pregnant woman and you didn’t want to hire her knowing she would need time off to have the baby, you should just fabricate another reason not to hire her. That’s still discrimination. Insidious.
#56 – Ah, but with the employment prospect at a decided disadvantage (e.g., obviously right off the bat her availability will be compromised due to impending maternity leave), if I’m the interviewer, what is she bringing to the company that would justify putting up with the bother versus other candidates? Hawk, we’ve utterly degraded our personal freedoms in the name of “rights” of supposedly ‘disadvantaged’ classes, all b/c politicians with less spine than the common jellyfish sacrifice princple for their image (e.g., phony appearance of ‘compassion’).
Try reading “Liberalism is a mental disorder” by Michael Savage. Other than the Savior Himself, the Apostles Matthew, Mark, Luke, John, James, Peter, and Paul, and the author Ben Stein (I could likely come up with others in their category as well), among the relatively few J-O-O-s that I’ve agreed with. “Compassion” or “Equality”, as defined by the liberal elite, rarely if ever results in either, but almost certainly in tyranny.
Hawk
in some instances you have to get together abd decide if you can do business. sometimes you can sometimes you cant
I wonder why they have not gone into a Muslim bakery and asked for a cake. They know they would probably send a muslim death squad after them. Muslims dont play around.
Does anyone else ever wish some people were -not- on your side?
Douglas, winifred, could we please try to avoid gross generalizations of cultures? It doesn’t work for Jews, Hindus, or Muslims any better than it works for Christians or even Mormons.
Frank P – I mentioned the J-O-O simply because there’s a cultural identification in this country about the overwhelming majority of them being politically liberal, whearas not only were the historical ones (like the biblical figures I’d mentioned) likely NOT of a similar mind, but there are MANY comtemporaries of the ‘tribe’ who are decidedly conservative, indeed, not unlike the more consevative LDS. Just shows the limits of stereotyping and why bigotry, in whatever direction, is intellectually vacuous and serves no useful purpose. I can see, for example, the new Utah Rep from the 4th district, and the cultural pot shots that inevitably will be tossed in her direction (“oreo cookie” for example) by those that themselves cry foul over dubious racial allegations.
Nothing I’ve said should be considered an slur against Jewish people (my paternal grandmother being one, so technically my dear ol’ dad counts ‘though he doesn’t consider himself thus) nor an excuse for anti-Semitism. However, I likewise don’t shy away from taking on the views of prominent Jews that I don’t agree with, based purely on merit of the argument and none else. As much as I tout Mr. Weinstein, Senior (“Savage’s” real name, his son runs a great energy drink company of which products I guzzle in great quantity), I would disagree vehemently with his Zionist views. That’s the beauty of America..here we can disagree in an agreeable fashion, ostensibly without fear we’re going to come home to a letter bomb or get gunned down in the streets merely for expressing our views. Consider that, all, before you decry the U-S-of-A too loudly.
Hence why I decry loudly this liberal mania over “fairness” and “equality”. As in “Animal Farm”, it seems envitable that some end up “more equal than others”. I’d rather strive for making all as free as possible, and let their respective fortunes go where they may.