Wednesday, June 13, 2018

Let Them Bake Cake (Part 2/4): The First Unresolved Question

In the first post in this series, I offered an overview of the ruling and its implications (or lack thereof).
In Part Two, I will begin addressing some unresolved questions that are sure to be hotly contested. 

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Is there a cogent argument that separates discrimination against people vs. discrimination against events or actions? In other words, can we treat someone fairly irregardless of their identity while drawing the lines at participating in certain activities?

Jack Phillips sold his goods to gay people all the time. In fact, he offered the couple in question an over-the-counter cake. It wasn't that he didn't want to offer his goods and services to them or to other gay people in general. He simply did not want to make a custom cake for a same-sex wedding in particular, since he believed that would make him complicit in the endorsement or celebration of a particular event to which he objected on moral grounds for religious reasons.

As best I can tell, this has been the case in every court battle I've seen on this issue. The business owners have had regular gay clientele, and many have had gay employees. One florist had served a gay client for ten years without incident until she refused to do a same-sex ceremony. Clearly, the fact that someone was gay did not dissuade them from hiring them, selling them goods, and being friends. It was the particular event that tripped them up.

Phillips is not even denying them the right to use goods he has already made for general public consumption. He is not asking his clients to agree with him about what marriage is or is not. He is, however, committed to using his artistic talents (a form of speech, more on that later) to make custom cakes that only participate in a marriage ceremony he believes is symbolically meaningful and inherently religious, even if the clients do not.

So, is there a way that 'agreeing to disagree' is even possible in this scenario?

Kennedy, though ruling in favor of Phillips, reminded everyone that this ruling was about process, not principle, by foreshadowing future discussion of the principle: “religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”  That seems pretty sweeping, suggesting that if Phillips refuses to bake a cake again, he will lose his case.

A number of fairly large Christian church organizations agree with Kennedy's statement above. In fact, they filed an amicus brief arguing that Phillips should lose the case. Their claim is that the religious arguments for this type of public accommodation and fairness should outweighs any religious arguments against it. One of their main points is that, since we live in a society in which there is a secular and a religious form of marriage (think Justice of the Peace vs. clergy), Phillips' religious objection should only stand if the same-sex marriage ceremony was overtly religious in nature, thus forcing Phillips into the awkward position of supporting what amounts to a religion other than his own. Since this wedding was secular, with no religious overtones, Phillip's argument is theologically unsound, and thus his religious exemption argument is also unsound.

On the other hand, Christianity has long held that a secular worldview is not a religiously neutral worldview. One does not need a statue of a god or a different holy book to commit idolatry - materialism and money will do, just to cite one biblical example (Matthew 6:24). We will all serve or worship someone or something (or so the argument goes) with our beliefs and actions. Phillips would argue that his participation is not, in fact, neutral; all marriage either aligns with what He believes is God's design or it does not, and he will communicate something about his allegiances by his participation when he knowingly contributes his artistic talent.

The counterpoint: In reference to Kennedy's affirmation of public accommodations law, three of the justices claimed there was consistency in that there was a product that Phillips would not sell to anyone: "a 'cake celebrating same-sex marriage' (Justice Neil Gorsuch), 'custom wedding cakes that express approval of same-sex marriage (Justice Clarence Thomas; Samuel Alito joined both concurrences)."  I wonder if this is similar to gay-owned businesses that cater to exclusively gay clientele, like this limousine service, or these exclusively gay getaways.  If there is "The Role of Gay Spaces for a Gay Destination", is there a role for straight spaces too? I

Writing for, Richard Epstein notes the following, which will serve as my summary to this section: 
The correct way to deal with this issue, as I have argued at length elsewhere, is to ask whether the antidiscrimination laws of Colorado that prohibit discrimination on grounds of sexual orientation should apply to a baker who believes in good faith that it violates his sincere religious beliefs to “design or create” a wedding cake for a same-sex wedding.  Phillips was neither careless nor inattentive in articulating his concerns. He made it crystal clear, as Kennedy noted, that he was prepared to provide Craig and Mullins any goods from his shop for any other occasion, or indeed any standardized goods that they needed for their wedding celebration. There is not the slightest hint here that Phillips overstated his objections in order to avoid dealing with gay individuals, whose business he has actively sought on many other occasions... 
Craig and Mullins seek to raise the ante when they proclaim that “no one should have to face the shame, embarrassment, and humiliation of being told ‘we don’t serve your kind here’ that we faced.” But that hyperbolic statement fails to acknowledge the limited nature of Phillips’ refusal, and it wholly overlooks the shame, embarrassment and humiliation, and outright intimidation and abuse, that their vocal supporters are willing to inflict on Phillips for the exercise of his religious and expressive beliefs. While Craig and Mullins are blessed with multiple choices if CADA does not apply, Phillips has no place to run if it does. 
A clear ruling backing Phillips would have cleared the air [to provide] religious individuals all the protection they ask for, given that they have no desire to mount a general campaign against gay and lesbian couples.  
It's one thing to say, "We don't serve your kind of people here." Isn't it another thing to say, "All people are welcome here, but not all causes." (Phillips, for example, won't custom make cakes celebrating divorce, and he won't make anything for Halloween. Considering some Christians I know who don't celebrate Christmas or Easter because they believe them be pagan holidays, I suspect they would turn down cakes for those causes if they were bakers).

Is there room in a pluralistic society for individuals - business owners and clients - to disagree in a way in which both sides honor the other as well as is possible while simultaneously protecting the voice of their conscience?

This question remains unresolved in the courts, and I suspect in the minds of many of us as well.

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Up next will be the 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?

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