Bakers, florists, and photographers who refuse to use their creative talents to serve same-sex weddings have been fined and have had their business threatened because they refuse to violate their conscience. Many Americans—including many Christians—even argued that private business owners should be forced to violate their conscience when such practices are considered discriminatory.
But how far are they willing to defend their views? Would they, for instance, punish a baker for refusing to make a cake with anti-gay statements? As the AP reports:
A baker in suburban Denver who refused to make a cake for a same-sex wedding is fighting a legal order requiring him to serve gay couples even though he argued that would violate his religious beliefs.
But now a separate case puts a twist in the debate over discrimination in public businesses, and it underscores the tensions that can arise when religious freedom intersects with a growing acceptance of gay couples.
Marjorie Silva, owner of Denver’s Azucar Bakery, is facing a complaint from a customer alleging she discriminated against his religious beliefs.
According to Silva, the man who visited last year wanted a Bible-shaped cake, which she agreed to make. Just as they were getting ready to complete the order, Silva said the man showed her a piece of paper with hateful words about gays that he wanted written on the cake. He also wanted the cake to have two men holding hands and an X on top of them, Silva said.
Let me start by making my own view on the subject clear: Whether the request was serious or a stunt done to make a political point, I find the viewpoint expressed to be loathsome. Assuming the words were indeed “hateful” they should have no association with a symbolic representation of the Christian faith. I also believe Ms. Silva should not be forced to use her creative skills in a way that violates her conscience.
However, the logic used to argue why only certain bakers should be forced to violate their conscience reveals a despicable double standard.
Take, for instance, the position of the American Civil Liberties Union (ACLU). Many people are still under the mistaken impression that the ACLU is willing to defend any and all civil liberties. That is not the case, and as anyone familiar with the group’s history knows, has never been their position. While they make rare exceptions (e.g., defending speech of Nazis), they tend to only defend civil liberties that align with left-wing causes.
For example, Amanda C. Goad, staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project, supported violating the conscience rights of bakers when it comes to same-sex weddings. As Goad said, “While we all agree that religious freedom is important, no one’s religious beliefs make it acceptable to break the law by discriminating against prospective customers.”
Yet when the situation is reversed, the ACLU refuses to defend speech they disagree with. Mark Silverstein, legal director of the ACLU in Colorado, told the AP, “There’s no law that says that a cake-maker has to write obscenities in the cake just because the customer wants it.”
The ACLU has the right to cowardly hide behind the legal argument, to shrug and say “Whaddya gonna do? It’s the law.” But the argument makes no sense if you are basing it on moral or civil rights distinctions.
After all, what are words? They are symbols used to convey meaning. And what is a cake created for a special event? A symbol used to convey meaning. The rule, both moral and legal, should be that people are not forced to create or use symbols in ways that violate their conscience without a compelling reason to violate that person’s freedom of conscience, speech, and association.
In America those compelling reasons are the impetus behind implementing anti-discrimination laws. In an article for Notre Dame Law Review, Richard F. Duncan looks at the rationale behind and purpose for anti-discrimination laws. “It is important to recognize, however, that civil rights laws codifying this principle are nothing more than exceptions to the general rule of free choice,” says Duncan.
Employers, landlords, business owners, and so on, have historically retained the moral and legal right to freedom of association, which allows them to choose whom they will or will not do business with. In the latter half of the 20th century, certain exemptions to this general principle became codified in the United States to protect categories such as race and gender.
It is important to remember that these anti-discrimination laws are exemptions to the general rule. Except for the protected classes, business owners, et al., are allowed to discriminate (i.e., refuse to do business) with people for a variety of reasons. For instance, a landlord is not required to rent to a pornographer or a Klansman. In general, sexual orientation (however it was made known to a business owner) has been one of thousands of factors that are unprotected by antidiscrimination laws.
People who claim that legislation to protect sexual orientation is merely seeking to provide the same protections that are afforded to other people are incorrect: they already have the same rights everyone else has, i.e., the right to be protected against discrimination on the basis of their race, gender, and other protected categories. It is necessary that we are clear that seeking to make sexual orientation a protected class are seeking a special exemption that is not afforded to millions of other criteria.
The three most common reasons for considering race as a protected class is because race is immutable, morally neutral, and that discrimination has a significantly detrimental economic and political impact. The only two that really matter, however, are the last two. Whether a characteristic is immutable (i.e., subject to change) is not all that important, and shouldn’t really factor into the question of antidiscrimination laws. As Duncan says,
Suppose, for example, that a drug were invented that would enable human beings to change their race. In other words, blacks could take a safe, inexpensive pill and become Caucasian. Would anyone argue seriously that civil rights laws should not cover blacks who declined the drug and thereby chose to remain black?
The reason race is a category worthy of protection is not because it is immutable, but because it is a morally neutral characteristic that has proven to have a significantly detrimental economic and political impact. And based on these criteria, sexual orientation is not analogous to race. While individual cases obviously vary, as a class homosexuals have more political and economic power than any other minority group in America. The idea that homosexuals suffer the same detrimental impact as African Americans is so ridiculous that no one even bothers to seriously make such a claim.
Reasonable arguments can be made that there is still a need in 2015 for government-mandated special exemptions for race and gender. But it makes no sense to expand it outside those areas to force bakers, florists, and photographers to use their creative abilities to create symbols and artifacts that violate their conscience—for any reason. Whether a person is refusing to bake a cake for a same-sex wedding or for an anti-gay party should make no difference. There are plenty of other bakers, florists, or photographers that you can hire instead.
Let’s stop trying to force people to accept certain viewpoints by force and start rebuilding respect for the basic freedoms of association, conscience, and speech.