Monday, April 22, 2013

Asking " Liberals " - Is Compelling People To Make Cakes For Gay Weddings Really Worth It ?

Hopefully today ( looking more like tomorrow )  I am going to do a substantial post on what in my view is a very concerning statement from some major religious leaders in Rhode Island. See this article and link as to some important parts of the new Rhode Island Same sex marriage legislation.  "No more exemptions" RI faith leaders write to legislature .

I hope to make an argument that straight folks,  LGBT , people of Faith and of no Faith at all , should perhaps have concerns too of the viewpoint of these religious leaders. Hopefully if it is  read  ,by some unlikely chance , by  greater and more influential minds than me it  raise some important issues that at least need to get a hearing.

However before I get to that I saw something related to the thoughts I hope to expound on via the CENTER FOR LAW AND RELIGION FORUM .   See Dan Crane 's post which also can be applied to the related florists and wedding photographer controversies Gay Wedding Cakes and Liberalism .

He says in part about wedding cakes compelled by the force of law :

...Alas, liberalism is losing out in the culture wars.  The gay wedding cakes battles are representative of a wider disease that infects people in both camps—invoking the power of government to endorse and enforce one’s world view on matters of sexuality and identity.  Rather than just saying, “I’ll take my business elsewhere,” the impulse is to call the attorney general’s office in support of one’s position, as though law and politics were the appropriate fora for deciding the morality of sexual identity and practice.

The predominant forces in both camps are pushing anti-liberal agendas.  In 2004, the Virginia Legislature passed a statute invalidating private contracts between gay people if they replicated the incidences of marriage.  Conservatives continue to resist political settlements on same-sex marriage that would shift marriage decisions from the state to individuals and private communities.  On the other side, progressives are fighting to enshrine their views in marriage and antidiscrimination laws and school curricula.  In the Chik-fil-A flap last summer, progressive politicians around the country threatened zoning prohibitions or other deployments of state power to fight the forces of “hatred and intolerance.”

Where are the liberals?  Where are the people willing to say: “As much as possible, let’s not decide these questions in the arena of the state.  Let’s let them play out in families, churches, religious communities, social networks, friendships, businesses, and private associations.  Let’s resist the impulse to make these kinds of divisive moral and religious questions political questions.  Let’s not fight another Thirty Years’ War.”
Let me try to preempt some likely objections with two concluding observations.

First, a liberal disposition cannot be confined to circumstances where one disapproves of someone else’s conduct but it causes no harm to others—because that’s an empty set.  It’s child’s play for lawyers, philosophers, and economists  to demonstrate that almost anything one person does affects other people.  When the baker refuses to make the wedding cake, it imposes real distress, humiliation, and inconvenience on the person requesting the cake.  Conversely, having to make the cake would impose real offense and moral indignity on the baker.  Liberalism doesn’t depend on a view that one of the parties really isn’t hurt, any more than free speech depends on a view that words can never be hurtful.  Liberalism is a disposition that says “the state must let pass these sorts of harm—they do not rise to the level of force and fraud where state intervention is justified.”

Second, to espouse liberalism isn’t to pretend that the state never has to make political judgments on issues of sexual orientation.  Since the state runs the military, it must decide whether gay people can serve in the armed forces.  Since the state regulates adoptions, it must decide whether gay people can adopt.  And there are of course other examples.  But the fact that it is sometimes unavoidable for the state to wade into these thorny issues does not justify the state wading in when it doesn’t have to.  The great project of liberalism is to strive continually for resolutions that don’t involve the state deciding divisive issues of  meaning and morality that require choosing between contending world views.  This isn’t always possible, but it’s possible much more of the time than it happens.

Calling all liberals . . .

Again read it all.

I think there is lot more going on here besides the gay marriage issue. One being that some people view things just through " Positive " liberty  legal viewpoint than the old " negative " liberty viewpoint. I think  it's safe to say for instance that Cathy Grossman at USA today sees the whole wedding cake issue through the lens of " Positive " liberty only .

More on those issues later.

However I got to think that Prof Crane's concerns are valid and might even have a substantial audience among many that support Same Sex Marriage. It's hard to contain these things and one wonders what precedents set today will effect other matters tomorrow. This is a major concern if one has the idea that perhaps governments reach is not unlimited


Snowbrush said...

Liberalism is a disposition that says “the state must let pass these sorts of harm—they do not rise to the level of force and fraud where state intervention is justified.”

Not this liberal. There's such a thing as equal accommodation, and it's the law. To give one of many examples, several florists in Rhode Island refused to honor an order for flowers that was placed by the FFRF to celebrate a court case that was won by an atheist (Jessica Ahlquist was the name, but my spelling might be a little off) who objected to a permanent religious object (a banner, I think it was) in a public school. The atheist sued the florists and won.

Mark Spears said...

Those who sell wedding cakes have just as much right to refuse to sell cake to queers as those who operate bus lines have to require Negroes to sit in the back of the bus. And while we are at it, we might as well give them the right to post a sign that says, "Help Wanted--no Jews or Catholics need apply".

But on a practical level, once I know about their hatred toward homosexuals, I would not eat their cake or any other food they sell, nor would I serve it to any guests. Maybe people who sell easy-to-contaminate food should be exempt from anti-hate regulations, and encouraged to make all their prejudices well known.

James H said...


We have a tradition of "accommodation" Right of Conscience that has worked out pretty well for over 200 years. Perhaps even accommodation laws should have a little accomodation

James H said...

Mark , I think the Mr Crane address that point to some degree in his post. I mean is this really the same thing as having to battle segregation in the South that was upheld by the force of Law in the South and in fact impeded interstate travel of blacks.

I am not sure the ability to a wedding cake ( which I suspect in reality is not impeded that much ) rises to the level of blacks and interstate travel in the South

Katy Anders said...

There have been a couple recent incidents that bring up a problem grey area in discrimination laws.

With most public accommodations, I can't be turned down for service if I am a woman or an Africa-American or a Catholic.

Since several states have now added "sexual orientation" to their list of forbidden considerations for service, then these cases are going to arise form time to time.

The cases that HAVE arisen, however, are in a kind of grey area. There was an incident involving a wedding photographer and a couple involving cakes.

It's one thing to say that I can't discriminate against black people if I sell shoes or hamburgers or magic markers.

However, that really only goes for fungible things - so-called widgets. If I'm a singer, I don't have to do a bar mitzva if I don't want to sing at a bar mitzva. period.

Our public accommodations laws should not turn anyone into a forced laborer, after all.

Are wedding cakes and wedding photography more like selling shoes (where there's no logical or valid reason to discriminate) or more like a performance?

Ending discrimination is "worth it." However, I'm not sure that these examples that have been popping up are of the kind that will lead to good precedent.

Washington State AG is looking into one of the cake cases. Hopefully, their decision will help define the current status of the law better, at least in that state.

Andy said...


I hear what your saying and I frankly am somewhat confused as to what "private discrimination" (for lack of a better word) is legal and what is illegal. It seems legal precedence is all over the place. The Boys Club could not exclude girls and is now the Boys and Girls Club, yet the Boy Scouts can exclude girls? The Jaycees could not prohibit women, but Augusta National could? I can't make heads or tails of the courts' decision when taken as a whole. The bizzaro logic often handed down by the courts is that if a private club does not discriminate enough, then it is a public club and cannot discriminate at all.

I will say I see two distinct issues that stand out to me. First, the 1st Amendment's right to associate enshrines the right to discriminate into the constitution, to what extent, I'm not really sure, but to ban all discrimination also means you lose a right our framer's thought to be quite valuable, after all it is in the first amendment ratified.

Second, I'm not sure even those who want to "end discrimination" really want to end ALL discrimination (and I don't think you are saying this). After all, we should have the right to keep convicted sex offenders from babysitting our children on that basis alone, as we would like to keep 8 year olds from drinking alcohol, narcoleptics from flying planes, the blind from being police officers, etc. It is simply a question of which groups get a super status under the law.

It is my opinion, as archaic as it may seem, that unless such action deprives someone of basic human necessities, any type of private discrimination should be permissible. Obviously this COULD have some terrible outcomes (and probably would on a rather small and isolated scale), but if the reverse were true and all private discrimination were outlawed, would you like to be required to perform at a bar mitzva, or worse yet, the Westboro Baptist Church?

Katy Anders said...


Yeah, that's kind of what I'm saying. Private clubs aren't open to the public - country clubs and the BSA, so they are excluded from the discrimination laws.

For everybody else, the basic rule is (as it should be), that I can deny anyone service for anyone reason. You've seen the signs. No shirt no shoes no service. The loud-mouthed drunk gets kicked out. Whatever.

But there have been a few groups carved OUT of that, where I can't deny services based on... race, religion, ethnicity, gender, handicap. A couple states add "sexual orientation."

I tend to support the public accommodations laws as written - at least if they were enforced correctly. A restaurant that opens itself to the public should NOT be able to say to a black man, "We do not serve your kind in here."

That's a very different thing from the bar mitzvah hypothetical, which the public accommodations laws don't cover - and they shouldn't cover!

I will only add that I think Christians do themselves a disservice when they argue in favor of a right to discriminate in public accommodations.- in FAVOR of a right to say, "We don't serve your kind here, boy!"

Christians have been on the wrong side of discrimination so often that it seems... ironic and sort of sad.

And I think it is something that, in retrospect, they are going to regret later on.