Tuesday, June 19, 2018

Let Them Bake Cake (Part 3/4): The Second Unresolved Question


In Part Two, I addressed the first of some unresolved questions that are sure to be hotly contested. Here is the second of the unresolved questions.

Part Three is going to deal almost entirely with the political or legal side of the issue. I am saving my perspective on what I believe Christians need to consider individually in spite of whatever law is finally enacted for a following post.

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SECOND UNRESOLVED QUESTION (with a bunch of subcategories):

Is art speech? Is baking art, and therefore speech? (A group of bakers with a neutral position on the case itself filed an amicus brief claiming it is.) And if baking a cake is speech, is forcing a baker to bake a cake they believe communicates a message they don't wish to communicate the same as forcing someone to say something not only against their will but in opposition to their conscience? 

We sometimes say, "You can't say that!" ("Fire!" in a crowded theater; slander; language that incites violence that is "intended, likely and imminent"; the betrayal of state secrets). But what if the government moves from rules that prohibit certain kinds of speech to rules that compel certain kinds of speech?

We don't want the government to tell us if we can or can't kneel for the national anthem and we don't want the President-elect to insist that singers must sing for his inauguration, yet these are far more obvious examples of speech (or at least expression). Shoot, fashion designers refused to custom make clothing for the Trumps, and nobody complained. Clearly we don't have a problem with businesses withholding goods or services in certain cases when they feel their involvement express an alignment (at least when the cause is one with which we agree).

Speaking of how causes can change perspective, let's compare what Arizona decided should happen in two cases involving expression: a tattooing case vs. a calligraphy case:
The Arizona high court relied in part on a 2010 opinion by the 9th U.S. Circuit Court of Appeals in Anderson v. City of Hermosa Beach. The Arizona opinion also examined whether the process of tattooing is a form of “purely expressive activity” deserving of First Amendment protection or whether it was merely “conduct with an expressive component.” 
This speech-conduct dichotomy remains an important concept in First Amendment jurisprudence. If conduct is expressive enough, it merits free-speech review. Some court decisions, such as the South Carolina Supreme Court’s State v. White (2002), have determined that “the process of injecting dye to create the tattoo is not sufficiently communicative to warrant protections and outweigh the risks to public safety.”
The Arizona high court reached a different conclusion, noting that tattoos contain a variety of words, messages, images and artwork. “They can express a broad range of messages, and they may be purely decorative or serve religious, political, or social purposes,” the court wrote.
 
The Arizona court also found no free-speech difference between the process of creating the tattoo and the resulting image. Here the court made an analogy to the printing of books or the painting of artwork, noting that the U.S. Supreme Court protects the process and the final product.
Huh. The Supreme Court protects the process and the final product of things that "express a broad range of messages, and they may be purely decorative or serve religious, political, or social purposes." Like... calligraphy, I assume, and possibly custom made cakes (if they are indeed a form of speech).

In a more recent Arizona ruling I referenced in the first post that talks about "expressive conduct," the judges decided that offering a good or service as part of the regular norms of doing business did not express support for the conduct toward which the good or service is directed, even if words were used.  That seems oddly contradictory to their earlier opinion about tattoos.

Let's run with their most recent ruling. It seems the court is saying that when you sell a public good or service, the court absolves you of any connection with what someone does with it if the use falls outside of what you intended. Fair enough. The court believes that a seller's means cannot be intertwined with a buyer's ends. If that is true, people can sell at will to those who use their provided means for ends that may be wildly at odds with the seller's worldview. Sotomayor noted in her dissent:
As Justice Thomas observes, the Court does not hold that wedding cakes are speech or expression entitled to First Amendment protection. Nor could it, consistent with our First Amendment precedents. Justice Thomas acknowledges that for conduct to constitute protected expression, the conduct must be reasonably understood by an observer to be communicative.... But Phillips submitted no evidence showing that an objective observer understands a wedding cake to convey a message, much less that the observer understands the message to be the baker's, rather than the marrying couple's. Indeed, some in the wedding industry could not explain what message, or whose, a wedding cake conveys. See Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93, 100-101 (1987) (no explanation of wedding cakes' symbolism was forthcoming "even amongst those who might be expected to be the experts"); id., at 104-105 (the cake cutting tradition might signify "the bride and groom ... as appropriating the cake" from the bride's parents). And Phillips points to no case in which this Court has suggested the provision of a baked good might be expressive conduct.
But do we really want courts that demand that everyone must agree with them on whether or not something is expressive conduct, or that the means and ends can be so cleanly separated in a business transaction? This demands that everyone concede to the court's legal perspectives on deeply significant moral theory. There is an ethical philosophy being expressed here, and it's by no means a settled one.  The newest justice, Grouch, had some clear words about this:
 “It is no more appropriate for the United States Supreme Court to tell Mr. Phillips that a wedding cake is just like any other—without regard to the religious significance his faith may attach to it—than it would be for the Court to suggest that for all persons sacramental bread is just bread or a kippah is just a cap.”
Even just a little nuance would be helpful. The following two examples are clearly not legal opinions on my part, but see if this kind of distinction makes sense. I offer these examples only to show the argument in a more stark manner, not to offer any direct or implied equivalence with those who enter into a same-sex marriage. My broad point with these examples: The general production of generic goods and services within the framework of commonly accepted design expectations is very different from the specific production of the same when the one providing the good or service is fully aware of whether or not what they offer (the means) will be uses as they intend (the ends).
  • If the calligraphy artist knew it was the Joker who wanted cards that said, "Go with a smile," isn't creating the cards different from just filling a generic request for the same thing? 
  • If a gun manufacturer knowingly crafted a custom-made a AK for the head of a hate group leader who then went on a shooting spree, I suspect a lawsuit claiming the manufacturer was complicit in some way would turn out differently than if the shooter just bought one randomly. 
  • Tattooing "I love Ashley Madison" for a dude whose girlfriend is named Ashely Madison is very different from tattooing it on a serial adulterer. If the tattoo artist knew, could she not agree to tattoo the former and refuse to tatoo the latter? 
  • If you are a travel agent  and animal-rights activist who regularly books safaris for people so they can appreciate the beauty of the animal kingdom, can you refuse to book a safari for Aryanna Gourdin if she makes it clear that she wants to book this trip to kill her next giraffe and hold its heart in her hand? You would have booked it if you didn't know the ends she intended, but now you do. 
  • To use two previous examples, if you are a singer asked to entertain at a gig or a designer asked to fashion a dress for a special occasion, and you would normally say yes because it's just a job, can you say no if you find it is for the Trump inauguration? You might even have done it for a the Trumps as generic clients, but now it is for an event that you find not just politically but morally problematic. 
Once again, I offer these examples only to show the argument in a different manner, not to offer any direct or implied equivalence with those who enter into a same-sex marriage. My point is that we tend to think - at least on issues that matter to us - that the means and motive are deeply connected with the ends, specifically when we have knowledge of the intended end.

In the regular course of business, Phillips does not care what his goods are used for, or who uses them. But in particular situations, when he is aware that his purposeful, expressive creation of a particular means is going to be used for a particular ends that he finds morally troubling, he uses his discretion and declines (in the case of Phillips, this meant not baking custom cakes that celebrate divorce, support Halloween, or are used at same-sex weddings).

You might not agree with Phillips, but I suspect we all want to be free to have that kind of discretion on issues that matter deeply to us. Andrew Sullivan, who is openly gay and a practicing Roman Catholic, notes in New York Magazine: 
It always worries me when gays advocate taking freedom away from other people. It worries me as a matter of principle. But it also unsettles me because some gay activists do not seem to realize that the position they’re taking is particularly dangerous for a tiny and historically despised minority. The blithe unconcern for the First Amendment in the war on “hate speech,” for example, ignores the fact that, for centuries, the First Amendment was the only defense the gay minority ever had — and now, with the first taste of power, we are restricting the rights of others in this respect? Ugh. Endorse the state’s right to coerce speech or conscience and you have ceded a principle that can so easily come back to haunt you. The freedom of any baker to express himself is, in this respect, indistinguishable from that of any gay person to do so — a truth that our current tribalism blinds so many to. I hope, in other words, that the baker prevails — but that the Supreme Court decision doesn’t turn on religious so much as artistic freedom.
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  • Is there a way to live together with concessions and accommodations that balance differing moral visions while allowing those holding them to live without personal compromise?
  • Can we simultaneously challenge each other about the truth and validity in our moral positions while living together in tolerant tension?
  • Can we make a clear distinction between what kind of "expressions" ought not be permitted vs. what kind of expression ought to be demanded? (And do we want a Supreme Court that is more authoritarian or libertarian when it comes to details?)
  • Are we all convinced that hills made of cake and calligraphy are the ones on which we wish to make our moral, political, and religious stands?

I'd like to think we could muddle through this together in a way protects all rights and freedoms while simultaneously expressing honor, dignity and respect to all people. "Honor all people," wrote Peter, "and fear God." (1 Peter 2:17)

Apparently, Peter believed there was a way to do both. I'd like to think there is too.

Up next is the Third Unresolved Question: Is the argument of those who decline to participate for religious reasons correct? Are they actually complicit by offering material aid to an event which they believe promotes and celebrates a moral ethic to which they are opposed?

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