April 02, 2015

A Rethinking Of The Cakes/Flower/Photos For Gay Weddings Issue

Many folks on the Left are treating the question of whether or not a business should be permitted to refuse services for a gay wedding as a matter of unjust discrimination based upon protected class. Many on the Right are treating it as a matter of freedom of religion. I see both sides, and while I lean strongly towards the free exercise argument I understand the other side’s concern (which I believe to be overblown) about places with “No ______ Allowed” signs in the window.

But as I’ve written and ruminated over the last several days, I’ve found myself drawn to a possible alternate way of accommodating everybody without doing violence to either matters of conscience or allowing wholesale discrimination. It involves other aspects of the First Amendment – freedom of speech and freedom of association. I believe that non-discrimination principles and religious scruples could be respected and accommodated if we applied those additional two aspects of the First Amendment in the matter of gay weddings.

To do this, I want to lay out a couple of principles that are – or ought to be – pretty non-controversial.

The first is that businesses do have the right to engage in speech and expressive conduct, or to refuse to do so – including refusing to do so for hire. For example, if I walked into the local t-shirt printing business and asked them to print three dozen shirts that read “F*ck the Police”, they would be free to tell me to take my business elsewhere because they reject the sentiment or the language used. If I walked into a bakery and asked for a cake decorated with a big marijuana leaf and the slogan “Legalize Marijuana”, no one would dispute that the owner would be well within his or her rights to reject the order on the grounds that they are uncomfortable putting that message on the cake.

The second is that businesses are free to accept or reject business and events which they view as incompatible with their views – for example, a baker who is an active Democrat would certainly be free to refuse to provide a cake for the opening of the new Republican Party headquarters in the county. Similarly, a florist or a photographer is certainly free to refuse to contract to provide their goods and services for a conference being put on by the Boy Scouts because they disagree with their policy of not allowing gay and atheist Scouts (a policy which has been ruled constitutionally protected as a matter of free exercise of religion). In both cases the basis for rejecting the event is the exercise of constitutionally protected civil rights and civil liberties by those holding the events because the business owners does not choose to associate themselves and their businesses with the events because they reject the message being expressed.

Now if you look at both principles above, the issue is a matter of refusing to engage in speech or association because the business owners hold a different view and choose not to communicate messages they reject or have their business associated with those promoting a particular point of view as they promote that point of view. Nobody is denying those individuals service in all contexts, merely in the discrete situation related to the particular message or event. The t-shirt shop will gladly provide member of the anti-police group with shirts that communicate another message. The baker will gladly serve members of the pro-pot group if they want a different cake or a dozen cookies. The restaurateur will gladly provide a table for members of the political group if they come to dine with their families and friends. If a Scout leader wants a dozen roses for his wife or a Scout orders a corsage for his prom date, the order will be gladly accepted. Assuming, of course, that the members of those groups, their families, their friends, and their other associates are willing to have anything to do with the business that turned away the group.

Which leads us back to the gay wedding issue. If one looks at the well-publicized cases of what some call “anti-gay discrimination” in cases involving weddings in the last few years, it has not been an issue of businesses refusing to serve homosexuals at all. In most of the cases the aggrieved customer had long been a patron of the establishment and had a good relationship with the business owner, who knew the customer’s sexual orientation and was quite content to have them as a customer. The problem arose in relation to one – and only one – event, that being providing services for the wedding ceremony and/or reception. In other words, they refused to be a part of the celebration of that which they found offensive to their firmly held beliefs and communication of opposite beliefs, just as each of we found in each of my earlier examples. They are doing that which we allow business owners to do all the time – to pick and choose which public and private events they do not want to be a part of and which speech they will not engage in for hire.

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