One of the points I’ve heard made about the current SCOTUS wedding cake controversy was that this was no ordinary cake that was being requested, just something “off the shelf,” but a Personal Creative Effort, something that represented some highly individual personal crafting that, if forced to be created, would be a compulsion counter to “Freedom of Speech,” and if vested in a personal religious sentiment, represents a profound violation of “Freedom of Religion.”
But, as this article notes, that’s a disingenuous argument. Any trade can be vested with special, personal effort. The food that restaurant cooks is a personal effort. The decor of that hotel was hand-picked. Heck, even just baking a cake that’s going to get “normal” non-artistic decor can be said to be a labor of love. Any trade, any craft, any job can be said to be a personal, creative expression, a calling to labor well before the Lord (or whomever). “And let the beauty of the LORD our God be upon us: and establish thou the work of our hands upon us; yea, the work of our hands establish thou it.” (Ps. 90:17)
This is not to question whether such protestations of creativity and vocational fervor are legitimate, but only to suggest that using them as a basis for overriding public-accommodations protections under civil rights laws is an instant slippery slope — not just for LGBT folk, but for racial minorities, for woman, for religious minorities, for military veterans, for the handicapped, for anyone currently protected by civil rights laws.
If you open your doors of your business to the public, then it is to the public. The religious expression, if any, is in the making, not in how the product is used by the customer. The creativity is in the crafting, not the virtue (known or unknown) of the person purchasing it. The blacksmith who crafted the nails used in the crucifixion was not condemned for it. Any other basis for legality returns us to the darkness of legal discrimination, under the guise of “religious liberty.”
I agree with you that bakers who refuse to make wedding cakes for gay weddings are dicks, but how do you address/argue these points?
A) a legal right to refuse custom (just not on grounds of race¹, disability, gender or sexual orientation)?
B) "the creativity is in the crafting…" how do you craft something for something that makes you deeply uncomfortable? Sticking 2 dudes or 2 girls on top of a cake shouldn't make one queasy but what about 3 guys? What about a cake for a legally sanctioned marriage of someone under the age of consent (which happens a lot in America)?
¹ – I can't help feeling there should be a legal precedent set by mixed-race weddings in the 50s and 60s…
Bonus question.. why is it always the bakers? We almost never hear of jewellers, caterers, wedding planners, photographers or musicians pulling the religious liberty card? (I seen venues and registrars cause controversy, but they almost never get taken to court). It's all about the cake, bout the cake, no trouble….
+Simon B 'A) a legal right to refuse custom (just not on grounds of race¹, disability, gender or sexual orientation)?'
Essentially, as I understand it, there is a legal right to refuse custom to anyone ("no shoes, no shirt, no service"); the public accommodation sections of the civil rights laws (federal and state) carve out specific exemptions to that right for groups that have been discriminated against in the past, not just on a one-off "Crazy old Bob doesn't make cakes for red-heads," but in a broad and systemic fashion.
In the United States that includes discrimination (in certain areas) around:
Race
Color
Religion
National Origin
Age (40 and over)
Sex [1]
Pregnacy
Citizenship
Familial Statu
Disability
Veteran Status
Genetic Information.
(The bold items were defined in the Civil Rights Act of 1964.)
Outside of that, a business owner can discriminate however they choose. "I don't like the clothes you're wearing." "No Clinton supporters allowed." "We don't serve red-heads here." Again, the idea is that these other prejudices are few and far between in occurance.
'B) "the creativity is in the crafting…" how do you craft something for something that makes you deeply uncomfortable?'
You suck it up, buttercup. You focus on the quality of the crafting, not the customer.
I mean, if someone felt queasy about the idea of the burger they were putting together at Burger King being served to a black man, or a woman in a hijab, or a mixed-race couple, or some baby-killing veteran … well, that's the cost of living in society.
'Sticking 2 dudes or 2 girls on top of a cake shouldn't make one queasy but what about 3 guys?'
It's really the same thing. Today's "shouldn't make one queasy" was a burning offense a century ago. Today's "ew, that's horrific" is tomorrow's fashion statement. If it falls into those protected classes (or whatever classes pertain at a given time and place), then that's the (personal) cost of doing business.
'What about a cake for a legally sanctioned marriage of someone under the age of consent (which happens a lot in America)?'
I suppose if one could frame reluctance around something other than "I disapprove of a religion that allows such a thing," you would probably be safe. If not, then, again, that's the cost of doing business with the public.
'¹ – I can't help feeling there should be a legal precedent set by mixed-race weddings in the 50s and 60s…'
Note that Loving v Virginia was settled federal precedent only in 1967 (!). On the other hand, California (a hotbed of anti-Asian sentiment for a century) allowed "mixed-race" marriages around 1950 or so.
'Bonus question.. why is it always the bakers? We almost never hear of jewellers, caterers, wedding planners, photographers or musicians pulling the religious liberty card? (I seen venues and registrars cause controversy, but they almost never get taken to court). It's all about the cake, bout the cake, no trouble….'
I've definitely seen cases involving photographers, as well as venues being taken to court.
As to the others, I can't say. Maybe cake decorators are more fussy, or perhaps it's easier for a wedding planner to seem less desirable as a vendor without crossing over the "Nope, won't do that" line.
—-[1] The EEOC under the Obama Administration extended the definition for "sex" to include sexual orientation and gender identity, as prejudice in this area was argued to be based on discriminatory stereotypes around sex — "a real woman wouldn't act that way" kind of thing.
https://en.wikipedia.org/wiki/Protected_class
All good points. Appreciated.