Guest Post From John Corvino — “Bake Me a Cake”: Three Paths for Balancing Liberty and Equality

(image: cake)

In 2013, Rachel and Laurel Bowman-Cryer asked Aaron and Melissa Klein, owners of Sweet Cakes by Melissa, to make them a wedding cake. The Kleins refused, citing religious objections. They were subsequently charged with violating the Oregon Equality Act and ordered to pay $135,000 in damages.

I’m a longtime outspoken supporter of same-sex marriage, not to mention a gay man myself. What’s more, I support laws that prohibit discrimination on the basis of sexual orientation, like the one under which the Kleins were charged. I don’t doubt that the Bowman-Cryers found their rejection painful and humiliating, and I sympathize with their position.

Yet I also have some sympathy with the Kleins, and not just because the $135,000 penalty seems excessive. The Kleins are private business owners, not public employees like Kentucky Clerk Kim Davis. They make cakes, not lifesaving medical equipment. They oppose same-sex marriage—which, in a free country, is their right to do—and they would prefer not to create cakes celebrating same-sex weddings; they are nonetheless willing to sell various other goods to LGBT customers. As it happens, there are plenty of bakers happy to cater same-sex weddings in the region where the Kleins’ shop was located: Gresham, Oregon—a city just outside of Portland.

And so, I find some weight in the position of those who ask incredulously, “Really? We’re forcing people to bake cakes?” I find some weight in that position, even though I ultimately believe that the Kleins’ liberty interests are outweighed by other factors here. In what follows I’m going to explore this tension, which we might frame broadly as the tension between liberty and equality.

Because my space is limited, I’m going to assume a variety of controversial premises and focus on a fairly narrow task. I’m going to assume that anti-discrimination laws are morally justified; that they should include sexual orientation and gender identity; that vendors who provide heterosexual wedding services while refusing to provide same-sex wedding services thereby engage in sexual-orientation discrimination; and that wedding cakes do not constitute First-Amendment protected expression. (Some readers will object that by making these assumptions I’m sidestepping all of the interesting questions. For what it’s worth, I’m working on a book in which I confront those questions; expect it in late 2016.)

My narrow task is this: I want to show that there are ways of furthering the Kleins’ liberty interests even given these assumptions, and even without granting them unfettered exemptions to the relevant non-discrimination laws. I will discuss three paths for achieving this goal. Although I favor the third, I believe all three deserve more attention than they typically receive.

Of course, one obvious way to further the Kleins’ liberty interests would be to scrap the assumptions—in particular, to reject anti-discrimination laws that cover sexual orientation—and say “tough luck” to same-sex couples. I’m not going to consider that libertarian path here. But I also hope to avoid the other extreme, which essentially tells the Kleins to bake the cake and shut up about it. (Unfortunately, the Oregon Bureau of Labor and Industries skated dangerously close to that path, including the “shut up” part.[1]).

In brief, the three paths are as follows:

(1) Fashion anti-discrimination law in such a way as to exclude businesses or services of certain types or sizes.

(2) Legally prohibit discrimination, grant religious (and perhaps other) exemptions, but require business owners who take advantage of such exemptions to post their position publicly, in order to give prior warning to same-sex couples.

(3) Legally prohibit discrimination, do not grant religious (and other) exemptions, but permit business owners who object to same-sex marriage to post their position publicly.

Let us examine each in turn.

(1) Fashion anti-discrimination law in such a way as to exclude businesses or services of certain types or sizes.

Path (1) suggests that we construct anti-discrimination law in such a way that it excludes businesses of certain types (e.g. “expressive,” or “wedding related”) or sizes. The law would still prohibit discrimination for most businesses, and it would still send a signal to all businesses that anti-gay views conflict with the community’s values.

The devil is in the details, though, and this approach has presented a number of thorny line-drawing problems. Suppose that one wants to exempt “expressive” businesses. Wedding photographers might count, but would bakers? What about florists? Caterers? Limousine drivers? (After all, the way drivers open car doors for newly married couples might express respect.) Many businesses—and not just those offering wedding services—include some expressive aspect.

A more straightforward approach restricts the built-in exemptions to businesses of a certain size. Such a proposal has been offered by a group of law professors consisting of Edward McGlynn Gaffney, Jr., Thomas C. Berg, Carl H. Esbeck, Richard W. Garnett, and Robin Fretwell Wilson.[2] They define “small business” as those that comprise five or fewer employees. They then propose that no small business shall be required to “provide goods or services that assist or promote the solemnization or celebration of any marriage, or provide counseling or other services that directly facilitate the perpetuation of any marriage….if providing such goods, services, benefits, or housing would cause such individuals or sole proprietors, or owners of such small businesses, to violate their sincerely held religious beliefs.” They additionally propose that this rule will not apply if “a party to the marriage is unable to obtain any similar good or services, employment benefits, or housing elsewhere without substantial hardship…”

The proposal attempts to balance some of the competing concerns that motivate this essay. Had such legislation been in place in Oregon, it would have allowed Sweet Cakes (a small business) to decline to bake a cake for a same-sex wedding, but only because there were numerous other local bakers available for such purposes.

On the other hand, as Mary Ann Case has argued, the proposal’s wording suffers from many of the problems that other exemption regimes have.[3] It singles out marriage, which is but one of countless areas of law where people have sincere objections; it also singles out religious objections, which are but a subset of conscience claims. What’s more, it exempts small-business owners from assisting the celebration of “any” marriage to which they object. What about interfaith marriages, remarriages after divorce, marriages not solemnized by a church, or marriages not solemnized by the “right” church? Could a Baptist baker refuse to sell anniversary cakes to Catholics, or a Muslim to Jews? Would the exemptions extend to interracial marriage—and if not, why not?

It’s true that the proposal includes the provision that exemptions won’t be granted unless the couple can find similar goods or services “without substantial hardship.” But that provision only considers the hardship to the couple, not the aggregate problem created when business owners can pick and choose which marriages to recognize when deciding whether to comply with relevant regulations. Moreover, how does one define substantial hardship? Would there need to be no other, willing baker within 20 miles? 50 miles? What if the only willing baker has lousy Yelp reviews?

If I thought that these various line-drawing problems could be satisfactorily solved, I might endorse some version of this path. Because I’m skeptical that they can, I believe we must consider alternatives.

(2) Legally prohibit discrimination, grant religious (and perhaps other) exemptions, but require business owners who take advantage of such exemptions to post their position publicly, in order to give prior warning to same-sex couples.

Many laws can achieve their aims even if the state grants a limited number of exemptions to them. For example, emissions standards help protect the environment even if the state exempts classic cars, of which there are relatively few. Historic-zoning regulations can preserve the character of neighborhoods even if the Historic Commission sometimes suspends the rules for safety, cost, or aesthetic reasons. Maybe anti-discrimination laws are like this: They signal our commitment to equality and fairness, and as long as they are enforced most of the time, they can substantially reduce unjust discrimination. But perhaps the state can allow some exemptions, especially when doing so serves other important aims, such as its commitments to liberty, religious freedom, and diversity.

For reasons that would take me too far afield to detail here, I’m generally skeptical of widespread religious exemptions. (I do support them in some limited cases, such as employment regulations having to do with garb, grooming, and holidays.) I worry that they are increasingly being treated as a “get out of the law free” card, and thus result in “Swiss cheese” law, full of holes created by diverse religious claims.

But suppose that exemptions are allowed. One way to reduce their negative effects on people like the Bowman-Cryers would be to adopt a policy suggested by Andrew Koppelman, among other writers: Businesses who take advantage of them should be required to post this fact prominently, on their website (if applicable) and at the business’s entrance, in order to give prior warning to those affected. [4] For the Kleins, such a posting might look something like the following:

“We welcome a diverse group of customers for a wide variety of baked goods. However, we also believe in a traditional definition of marriage as the union of one man and one woman. Accordingly, notwithstanding the Oregon Equality Act, we do not provide cakes for same-sex weddings.”

This posting requirement would achieve two aims. First, it would ensure that those seeking exemptions are serious about whatever commitments render them unable or unwilling to adhere to applicable law—serious enough that they’re willing to state their opposition publicly, even though doing so might cost them some business. Laws are not merely suggestions, and those seeking exemptions from them ought to have very strong reasons.

Second, and more important, the public-posting requirement would help to keep conservative religious business owners and same-sex couples from the awkward, uncomfortable, and painful personal encounters in which owners directly reject the couples—as happened with the Kleins and the Bowman-Cryers. This avoidance is something that both sides should welcome.

Of course, if the exemptions became too widespread, as they might be in certain conservative small towns, then the same-sex couples would lack access to services. Perhaps Path 2 could be modified with a “without substantial hardship” clause, as discussed in Path 1. Or perhaps we should consider a third path.

(3) Legally prohibit discrimination, do not grant religious (and other) exemptions, but permit business owners who object to same-sex marriage to post their position publicly.

The third path resembles the second, except without exemptions to the relevant law. Nevertheless, it protects the expressive rights of business owners like the Kleins who wish to make their opposition to same-sex marriage clear, by allowing them to proclaim it publicly. Such business owners might post announcements of the following sort:

“We comply with all applicable laws, including laws that prohibit discrimination on the basis of sexual orientation; we thus provide cakes for same-sex weddings when requested to do so. However, we also believe in a traditional definition of marriage as the union of one man and one woman and personally oppose same-sex marriage.”

The third path is, in fact, an existing legal option: Although the Kleins are not free to discriminate, they are, and always have been, free to express their views about marriage. There was some confusion about this point in media reports about a “gag order,” a confusion that was encouraged by ambiguity in the Labor Commissioner’s statements as well as in the Kleins’ own public remarks.[5] But the law is clear: Free speech must include freedom for those who hold minority viewpoints, even offensive ones, and free speech rights don’t disappear when one opens a business.

As I see it, this path has several advantages. It gives conservative religious business owners the freedom to express their views (a freedom which, as noted, they’ve had all along). Yet it also requires that they follow applicable non-discrimination laws in the conduct of their business, and thus guarantees access for same-sex couples in towns where few businesses might otherwise serve them. Meanwhile, in towns with many gay-affirming options, it alerts same-sex couples that other businesses may better share their values.

Thus, even without granting exemptions, this option makes it unlikely that people like the Kleins will ever have to make cakes for same-sex weddings: Why would gay couples choose such bakers, given knowledge of their position and good available alternatives?

Some might object that encouraging businesses to post signs opposing same-sex marriage would simply perpetuate the negative environment that anti-discrimination laws aim to ameliorate. But remember: Businesses are currently allowed to make such postings, and hardly any do. Remember, too, that these are not “no gays allowed” signs: Unlike path 2, which allows exemptions, this path requires all businesses to follow the relevant anti-discrimination laws.

The more serious concern, I think, is that this path doesn’t quite address the main concerns of conservative religious business owners like the Kleins. Yes, part of their worry is expressive—they do not want to condone same sex marriage—and this path helps remove any doubt about where they stand. But they also worry about complicity: They don’t want to participate in wedding celebrations for marriages of which they disapprove. And on that score, this proposal does essentially tell them “tough luck.”

It’s worth emphasizing, however, that this concern is not unique to same-sex marriage. Oregon prohibits discrimination in public accommodations on the basis of “race, color, religion, sex, sexual orientation, national origin, marital status or age . . .” If Ron and Nancy want a wedding cake, the Kleins may not refuse them on the grounds that one of them is previously divorced. If Rebecca and Mohammed want a wedding cake, the Kleins may not refuse them on the grounds that they have an interfaith relationship. If Richard and Mildred want a wedding cake, the Kleins may not refuse them on the grounds that they’re of different races—and so on.

Notice that virtually no one would frame these cases as “forcing” the Kleins to be “complicit” in the resulting marriages. That’s partly because there’s greater moral consensus on these other issues. But it’s also because people recognize that baking a wedding cake is not tantamount to participating in a marriage: If it were, there would be a lot of polygamous bakers in the world.

Nor—on a more serious note—is baking a wedding cake tantamount to endorsing a marriage. As the New Mexico Supreme Court put it, in a similar case involving wedding photographers, “It is well known to the public that wedding photographers are hired by paying customers and that a photographer may not share the happy couple’s views on issues ranging from the minor (the color scheme, the hors d’oeuvres) to the decidedly major (the religious service, the choice of bride or groom).”[6] The same applies to bakers.

So, to conclude: Do I believe that we should force people to make cakes they don’t want to make? It depends. I support anti-discrimination laws, which do indeed restrict the range of acceptable reasons for turning away customers from a place of business. On the other hand, I generally don’t believe in picking fights just to make a point. If you live in an area with lots of gay-friendly options, and you deliberately seek a same-sex-wedding cake from bakers known to oppose same-sex marriage, then you are not much better than someone who deliberately seeks a Bible-shaped “God hates gays” cake from bakers known to be gay-friendly. This is one area where the moral rules are at least as important as the legal ones, and the relevant moral rule is clear: Don’t be a jerk. None of the paths discussed will eliminate jerks, but they may provide options for those seeking to minimize conflict while upholding the values of liberty and equality.[7]

What’s Wrong? Advisory Board member John Corvino is Professor and Chair of Philosophy at Wayne State University in Detroit, Michigan. Read more at johncorvino.com.  What’s Wrong? is grateful to Professor Corvino for providing this guest post.

NOTES

[1] For discussion of this problem, see for example Walter Olson, “Oregon: Bakers’ Statements to National Media Were ‘Unlawful’” Ricochet, accessed October 7, 2015. https://ricochet.com/oregon-bakers-statements-to-national-media-were-unlawful/; Eugene Volokh, “More on the Oregon Same-Sex Wedding Cake Decision – The Volokh Consipiracy,” The Washington Post, last modified 2015, accessed October 5, 2015, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/07/10/more-on-the-oregon-same-sex-wedding-cake-decision/ ; and Ken White, “Lawsplainer: So Are Those Christian Cake Bakers in Oregon Unconstitutionally Gagged or Not?” Popehat, accessed October 7, 2015, https://popehat.com/2015/07/08/lawsplainer-so-are-those-christian-cake-bakers-in-oregon-unconstitutionally-gagged-or-not/

[2] Thomas Berg et al., “Statement of Law Professors on Religious Liberty Implications of Proposed Hawaii Marriage Equality Act of 2013,” 2013, http://mirrorofjustice.blogs.com/files/hawaii-gaffney-et-al-testimony-full-final-28oct13-1.pdf.

[3] Mary Anne Case, “Why Live-and-Let-Live Is Not a Viable Solution to the Difficult Problems of Religious Accommodation in the Age of Sexual Civil Rights,” Southern California Law Review 88 (2015): 463 – 492

[4] See for example Andrew M Koppelman, “Gay Rights, Religious Accommodations, and the Purposes of Antidiscrimination Law,” Southern California Law Review 88 (2015): 619-659.

[5] See note 1 above for references.

[6] Elane Photography, LLC v. Willock, 309 P. 3d 53 – NM: Supreme Court 2013.

[7] For helpful discussion of earlier drafts of this essay, I am grateful to Dale Carpenter, Joseph Dunne, Sherif Girgis, Andrew Koppelman, Judi O’Kelley, Walter Olson, Jonathan Rauch, Bruce Russell, Thomas Wood, and Kevin Vallier.