The United States Supreme Court is, as of this writing, considering a case involving a wedding cake. The gist of the battle is between the right of freedom of expression and the right to not be discriminated against. One the one side is a Christian baker who refused to bake a wedding cake for a same-sex wedding based on his religious belief that same-sex marriage is wrong. On the other side is the couple who claim that they are being discriminated against by this refusal.
A primary argument being advanced in the baker’s defense is based on the 1st Amendment: being forced to make a cake for a same-sex wedding would violate his freedom of expression. This right of free expression has a clear legal foundation and has very strong moral foundations, courtesy of various philosophical arguments in its favor. But, of course, there are also strong legal and moral foundations for not allowing discrimination against potential customers.
While the freedom of expression is usually presented as a right against being silenced, it also provides the right not to be compelled to engage in an act of expression. This freedom from compelled expression provides a person with a moral (and a legal) right to refuse certain services.
This line of reasoning does have considerable appeal and I endorse it both on philosophical and selfish grounds. I operate a writing business in which I get paid to write books. I accept that I have no legal or moral right to refuse business from someone just because she is gay, Jewish, Christian, or a non-runner. However, my writing is an act of expression. So, my freedom of expression grants me a moral right to refuse to write in support of views I oppose. For example, I have the right to refuse to write a tract advocating the persecution of Christians. This is because the creation of such work entails endorsement of a view I oppose. If I write a tract in favor of persecuting Christians, I would be unambiguously expressing my support of the idea. In such cases, an appeal to freedom of expression would seem quite relevant and reasonable. This can be generalized into the principle that it is wrong to compel expression and that people have the right to refuse compelled expression.
Since I am consistent, I extend this principle to everyone and do not limit it merely to myself or those I agree with. So, if a fellow author believes that her religion condemns same-sex marriage as wickedness, then she would be protected by the freedom of expression from being required to write in favor of same-sex marriage. If a LGBT group approached her with a lucrative offer to pen a piece in favor of gay marriage, she would have the moral right to reject it. They have no moral right to expect her to express views she does not hold, even for cash.
This principle does, of course, have limits. One obvious limit is that my right of freedom of expression does not entail that I have a right to forbid my books from being sold to people I disapprove of or disagree with. For example, it does not give me the right to forbid Amazon from selling my books to racists, smug liberals, or smokers. This is because selling a book to a person is not an endorsement of that person’s ideas and is thus not compelled expression. I do not endorse intolerant atheism just because an intolerant atheist can buy my book.
As such an author who believes her religion condemns same-sex marriage 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, 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. Likewise, if Donald Trump buys one of my books, it does not mean that I am endorsing Trump.
Not surprisingly, the case before the supreme court does not involve a Christian writer being asked to write pro-gay works—writers clearly have a right to refuse such jobs. As noted above, the case being considered involves a wedding cake. The key question, then, is selling a wedding cake more like being compelled to write in favor of a position one opposes or like someone buying a book one has written? If it like writing, then the freedom of expression would apply. If it is like someone buying a book, then the freedom of expression would not apply.
To get the obvious out of the way, refusing to bake a cake for a wedding because the people involved were Jewish, black, Christian, white, or Canadian would seem to be discrimination. If the person refusing to do so said that baking a cake for a Jew endorsed Judaism, that baking a cake for a a black wedding endorsed blackness, or that baking a wedding cake for Canadian endorsed Canada, they would be regarded as either joking or crazy. But perhaps it can be argued that baking a wedding cake for a same-sex couple would be a compelled expression of agreement or endorsement.
On the face of it, making a wedding cake 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 D&D, I do not say “aha, Dominoes endorses role-playing games!” After all, they are just selling me pizza. Likewise, if a Nazi buys my books on Amazon, I am not therefore endorsing Nazi ideology.
In the case of the wedding cake, it could be argued that it is a special 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. If a baker makes a congratulatory cake, they do not require customers to prove that the congratulations is for something the baker agrees with. It also does not follow that a baker who bakes such a cake is therefore endorsing what the cake congratulates. For example, if someone gets a friend a cake congratulating them on their first murder, it does not follow that the baker approves of murder. As such, selling a person a wedding cake does not entail approval of the wedding. For example, if a baker sells a wedding cake to a person who has committed adultery and is remarrying so they can steal from their new spouse, this does not entail the baker’s approval of adultery or theft.
It can easily be argued that bakers do 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 rightly refuse to bake a sexually explicit wedding cake or one festooned with gay pride slogans.
However, creating a plain wedding cake would not seem to be an 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 I have written to a person because he is an intolerant atheist, but I can refuse a contract to write in support of atheism.
The obvious counter would be to argue that making a generic wedding cake is an act of creation and is thus an expression. As such, it would be protected by the freedom of expression. While this does have some appeal, it does run into some problems.
One obvious problem is that accepting this as a general principle would entail that anyone who creates anything would thus have the right to refuse to sell their work based on their values. So, for example, an atheist could forbid Amazon to sell their books to Christians, Muslims and Jews. As another example, a cook at a restaurant could refuse to sell a meal to people whose values they opposed. Perhaps even a surgeon could claim that they express their views via surgery and thus could not be compelled to perform surgery on someone whose values they reject. As should be clear, this would essentially be a license to discriminate and thus is problematic.
This problem can, of course, be addressed by carefully restricting what counts as expression. However, if baking a generic wedding cake would count, then this would open the door quite wide in terms of what would count as expression. After all, if a generic cake is expression, then it would seem to follow that so is a pizza, a piece of furniture, a shed, or a shirt.
It could be argued that making a wedding cake is special because of the event. But, the same principle would need to be extended to all things made for events that one might oppose. This would also seem to open the door wide to discrimination.
The problem can also be addressed by carefully restricting what counts as discrimination and what does not. For example, laws can easily be created that make it discrimination to not sell to someone based on their religion, but not discrimination to refuse based on their sexual orientation. This, of course, does not address the moral concerns about discrimination.
Another obvious problem is that this approach would entail that selling a person something one has created would be an act of endorsement towards that person. In the case of the wedding cake, the claim is that being forced to sell a generic cake would be to express approval of the wedding. But, as noted above, selling something to someone is not in itself an act of approval. If, for example, Nazi’s buy handmade Tiki torches to wave at their rally, then this does not entail that the maker is endorsing Nazis. Naturally, the torch maker has every right to refuse to carve Nazi symbols into their torches. Likewise, if a gay couple buys a wedding cake for their wedding, the baker is no more endorsing the wedding than the gas station that will sell them the gas they will use to drive to their wedding. Or the sub maker who will sell them the subs that will fuel them through their gay wedding night.
In light of the above, selling a generic wedding cake is not compelled expression and hence a baker does not have the right to refuse to sell one to a same-sex couple. But, a suitably custom wedding cake would be an act of expression and a baker has every right to refuse any design they do not endorse. To go back to the book analogy, my being unable to forbid sales of my books is not compelled expression—even though the books are expressive creations. However, being forced to write a custom book specifically for a view I do not endorse would be compelled expression.
I wonder if they had wedding cakes in Sodom and Gomorrah, before the fire and brimstone fell?
Michael LaBossiere says
I would assume they did; wedding cakes are the cakes of the devil.
Most of your arguments would fall into the “ad absurdum” category, I’m afraid, or pretty much miss the point. No one is talking about refusing to sell a cake to anyone, or blocking the sale to anyone on any kind of secondary market. No one is talking about refusing to do business with anyone.
Further, most of your arguments tend to fall upon some very negative, even downright evil parties – at least hinting at some kind of correlation. Seven times in your post you cited imaginary incidents wherein someone wanted to refuse the business of Nazis, using them as a comparison. Even in your own case, you suggested that you might want to refuse to write a piece endorsing the persecution of Christians.
The case before the Supreme Court is not nearly as dramatic as that. I think maybe a better comparison, more in line with the facts of this case, would be something that isn’t so obviously hateful – one that merely expresses the conflict that often arises between US law and religious beliefs. What if a Muslim graphic artist were asked to design the cover for a book that talks about the glory of Christ? Would he be able to refuse that work on the basis of the conflict with his own religious beliefs?
The main point of the case before the Supreme Court has nothing to do with “refusing to do business”. Philips’ claim is not about selling cakes or discrimination, but rather on the basis of a particular message, which is the endorsement of same-sex marriage.
In fact, I’d say that this case extends beyond any of this and has become political. It is not about “accept me for who I am”, but rather, “endorse my message or I’ll sue your ass!”
“Naturally, the torch maker has every right to refuse to carve Nazi symbols into their torches.”
is the kind of thing you mean when you mention extremes, I think? But that is exactly the consequence of a decision against the cake shop – the torch maker will lose that right.
I’ve read messages suggesting exactly that kind of action, if the decision goes against the baker, as a way to force a reappraisal. In fact, from the transcript, from the Solicitor General:
“I don’t think you could force the African American sculptor to sculpt a cross for the Klan service just
because he’d do it for other religious -“
These are exactly the kinds of issues that arise. The court has, over the decades, not just fit a camel through the eye of the Commerce Clause; it has stampeded a whole herd of them through it. It now has to find the narrow ground in which it can maintain its past non-discrimination decisions based on Commerce without opening up that possibility. I don’t envy them the task.
Y’all did see the story of the porn actress who did not want to make porn with men who had done guy-guy stuff, was harassed by SJW’s, and comitted suicide? Thoughts in this context?
I saw it. This specific outcome was sad and dramatic, but the story is standard procedure for social media, where packs of unthinking and uncaring bullies dominate unchecked.
I’m fairly certain I posted a similar comment somewhere on this blog – but I recently watched a documentary or a movie about the Salem Witch Trials; I am also familiar with the Amish (and other cultural) practice of public “shaming” – and this is all too close to both of those examples.
We should be able to rely on the rule of law and the wisdom and detachment of our elected judges and lawmakers, but they, too, are running scared of the angry mobs.
Yes, they are (the kinds of issues that arise) – and I agree with you about the difficulty of the task set forth in front of the Supreme Court.
My point was a little less far-reaching, though. By citing this kind of example, there is an implied equivalence – suggesting that a Christian baker might view a same-sex couple in the same way that a Jew might view a Nazi, or that by not wanting to design/decorate a cake the message is equivalent to one advocating the persecution of others.
Many bakers have filed “Amicus Briefs” in this instance, seeking confirmation that their work is indeed artwork, and that they should be free to accept or decline commissions on that basis.
I wonder what might have happened had Michelangelo declined to paint the Sistine Ceiling on the basis that he was, in fact, an atheist and the commission would require that he violate those beliefs (or lack thereof)?.
(I am not making any claim about Michelangelo – only speculating)
Michael LaBossiere says
I do argue against compelled expression right in the essay. The baker cannot be compelled to create a special cake endorsing something he does not believe in, anymore than I can be compelled to write a book supporting something I do not agree with. But, he does not have the right to refuse to sell a stock cake to a customer who just wants to peacefully buy a cake.Likewise, I have no right to insist that Amazon forbid specified people I disagree with from buying my books. To respond to your examples, the graphic artist has the right to refuse to create that book cover. But, if someone wanted to buy stock cover art he created, then he would have no right to refuse a customer just because the customer was a Christian. I made these points in the essay.
From scotus web site. My emphasis.
Issue: Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.
Michael LaBossiere says
Put that way, the answer is easy and obvious: no, he cannot be compelled to create expression that violates his beliefs. But, it is equally easy and obvious that he has no right to not sell them a generic cake. Unless, of course, we want to take all forms of baking, making and constructing as expression. If so, a doctor should be able to refuse to perform surgery on someone based on their believes, since surgery is an expression.
I’m going to leave this here. It’s probably not pertinent to a significant degree to this specific piece but it does apply in general. Thoughts?