Indiana’s version of the Religious Freedom Restoration Act set off a firestorm of controversy. Opponents of the law contended that it would legalize discrimination while some proponents argued that it would do no such thing. Some proponents contended that it would allow people and businesses to refuse certain services to homosexuals, but that this should not be considered discrimination but a matter of freedom of expression. This approach is both interesting and well worth considering.
In the United States, freedom of expression is a legally protected right. More importantly, from a philosophical perspective, it is also a well-supported moral right. As such, an appeal to freedom of expression can be a useful defense.
In the case of the Religious Freedom Restoration Act, the argument from freedom of expression would certainly not work in regards to justifying general discrimination in regards to goods and services. For example, the owner of a pizzeria would be hard pressed to claim that not being allowed to refuse service to a person just because she is gay violates his freedom of expression. However, freedom of expression might be applicable in certain cases.
While the freedom of expression is typically presented as a right against being silenced, it also provides the right not to be compelled to express views (specifically views that one does not hold or that one opposes). The right to not be compelled in one’s expression would thus seem to give a person a moral (and a legal) right to refuse certain services.
This line of reasoning does have considerable appeal. For example, I operate a writing business—I write books to be sold and I do freelance work. I obviously have no moral right to refuse business from someone just because she is gay, Jewish, Christian, or a non-runner. However, my writing is clearly an act of expression. As such, my freedom of expression grants me a clear moral right to refuse to write a tract endorsing Nazism or one advocating hatred of Christians. I also design book covers and do some graphic work (graphic as in visual, not as in adult content). Since these are clearly expressions, I would have the moral right to refuse to do a book cover for book expressing ideas I regard as morally wrong, such as eliminating religious freedom in favor of enforced atheism. This is because the creation of such work entails a clear endorsement and expression of the ideas. If I write a tract in favor of white supremacy, I am unambiguously expressing my support of the idea. If I knowingly do a cover for a book on white supremacy, then it would be reasonable to infer I agreed with the ideas. In such cases, an appeal to freedom of expression would seem quite relevant and reasonable.
Obviously, an author or cover designer who believes that her religion condemns same-sex marriage as wickedness would also be protected by the freedom of expression from being required to express views she does not hold. If a LGBT group approached her and offered her a fat stack of cash to pen a piece in favor of gay marriage, she would have the moral right to reject their offer. After all, they have no moral right to expect her to express views she does not hold, even for fat stacks of cash.
In contrast, I could not use freedom of expression as a reason to not sell one of my books or works to a person. For example, freedom of expression does not grant me the right to forbid Amazon from selling my books to Nazis, racists, intolerant atheists, or non-runners. After all, selling a book to a person is not an endorsement of that person’s ideas. I do not endorse intolerant atheism just because an intolerant atheist can buy my book.
Likewise, the author who believes her religion condemns same-sex marriage as wickedness could not use freedom of expression to demand that Amazon not sell her books to homosexuals. While buying a book might suggest agreement with the author (but it obviously does not entail it—I have plenty of philosophy books whose contents I regard as being in error), it does not suggest that the author is endorsing the purchaser. So, if a gay person buys the author’s anti-same-sex marriage book, it does not mean that the author is endorsing same-sex marriage.
Not surprisingly, no one has claimed that religious freedom acts are needed to protect Christian writers from being forced to write pro-gay works. However, it has been argued that the acts are needed to protect the freedom of expression for people such as caterers, bakers, and photographers.
The argument is that catering a wedding, baking a wedding cake, doing a wedding or engagement photo shoot and similar things are expressions and are thus covered by the right to freedom of expression.
Obviously enough, if these activities are expressions analogous to the paradigm cases of speech and writing, then the freedom of expression does protect them. As such, the key question is whether or not such actions are acts of expression such that engaging in them in relation to a same-sex wedding would express an endorsement of same-sex marriage.
To get the obvious out of the way, refusing to cater, photograph or bake a cake for a wedding because the people involved were Jewish, black, Christian, white, or Canadian would clearly be discrimination. If the person refusing to do so said that baking a cake for a Jew endorsed Judaism, that catering a black wedding endorsed blackness, or that photographing Canadians being married was an endorsement of Canada, she would be regarded as either joking or crazy. But perhaps a case could be made that catering, baking and photographing are expressions of agreement or endorsement.
On the face of it, catering food for a wedding would not seem to be expressing approval or agreement with the wedding, regardless of what sort of wedding it might be. Selling someone food would seem to be like selling them a book—their buying it says nothing about what I endorse or believe. When the pizza delivery person arrives with a pizza when I am playing Pathfinder, I do not say “aha, Dominoes endorses role-playing games!” After all, they are just selling me pizza.
In the case of the wedding cake, it could be argued that it is a specific sort of cake and creating one does express an endorsement. By this reasoning, a birthday cake would entail an endorsement of the person’s birth and continued existence, a congratulations cake would entail an endorsement of that person’s achievement and so on for all the various cakes. This, obviously enough, seems implausible. Making me a birthday cake does not show that Publix endorses my birth or continued existence. They are just selling me a cake. Likewise, selling a person a wedding cake does not entail approval of the wedding. Obviously enough, if a baker sells a wedding cake to a person who has committed adultery, this does not entail her approval of adultery.
It could be argued that bakers have the right to refuse a specific design or message on the cake. For example, a Jewish baker could claim that he has the right to refuse to create a Nazi cake with swastikas and Nazi slogans. This seems reasonable—a baker, like a writer, should not be compelled to create content she does not wish to express. Given this principle, a baker could refuse to bake a sexually explicit wedding cake or one festooned with gay pride slogans and condemnations of straight “breeders.” However, creating a plain wedding cake is not the expression of ideas and would be on par with selling a person a book rather than being forced to write specific content. By analogy, I cannot refuse to sell a book to a person because he is an intolerant atheist, but I can refuse contract to write in support of that view.
Since photography is a form of art (at least in some cases), it is certainly reasonable to regard it is a form of artistic expression. On this ground it is reasonable to accept that photography is protected by the freedom of expression. The key issue here is whether taking pictures commercially is like writing words—that is, photographing something is an endorsement of the activity or if it is like selling a book, which is merely selling a product and not an endorsement.
On the face of it, commercial photography would seem to be like selling a book. A person who is paid to cover a war or a disaster is not taken to be endorsing the war or the disaster. One would not say that because a person took a photo of a soldier shooting a civilian that he endorse that activity. Likewise, a person photographing a wedding is not endorsing the wedding—she is merely recording the event. For money.
It might be countered that a wedding photographer is different from other commercial photographers—she is involved in the process and her involvement is an expression of approval. But, of course, commercial photographers who take photos at sports events, political events, protests and such are also involved in the process—they are there, taking pictures. However, a photographer hired to take pictures of Hilary Clinton does not thus express her support (or vote) for Hilary. She is just taking pictures. Fox News, after all, takes video and photos of Hilary Clinton, but they do not thereby endorse Hilary. As such, the freedom of expression would not seem to grant a commercial photographer the right to refuse to photograph a same-sex wedding on the basis of an appeal to freedom of expression since taking photos does not involve endorsing the subject.
That said, another approach would be to argue that while taking a photo of an event does not entail endorsement of the event, an artist cannot be compelled to create a work of art that she does not wish to create. Since a photograph is art, a wedding photographer cannot be compelled to create an image of a same-sex wedding, just as a writer cannot be justly compelled to write a certain sort of book. This certainly has considerable appeal. After all, a photographer would seem to have every right to refuse to take photos of a wedding orgy or even of a tastefully nude wedding on the basis of the content.
Of course, this would also seem to allow commercial wedding photographers to refuse to take photos of blacks, Christians, Jews, or anything on the grounds that she does not want to create, for example, a photographic work including crosses or black people. So, consistency would seem to require that if wedding photographers can refuse to serve gay clients on the basis of artistic content, then a wedding photographer could refuse anyone on the same grounds. Thus, wedding photographers should be permitted to have “whites only”, “straights only” or “gays only” signs on their business. For artistic reasons, of course. This does seem a bit problematic in regards to commercial wedding photographers.