A Philosopher's Blog

Is Baking a Gay Wedding Cake an Endorsement of Same Sex Marriage?

Posted in Ethics, Law, Philosophy, Politics, Religion by Michael LaBossiere on April 10, 2015

Indiana’s version of the Religious Freedom Restoration Act set off a firestorm of controversy. Opponents of the law contended that it would legalize discrimination while some proponents argued that it would do no such thing. Some proponents contended that it would allow people and businesses to refuse certain services to homosexuals, but that this should not be considered discrimination but a matter of freedom of expression. This approach is both interesting and well worth considering.

In the United States, freedom of expression is a legally protected right. More importantly, from a philosophical perspective, it is also a well-supported moral right. As such, an appeal to freedom of expression can be a useful defense.

In the case of the Religious Freedom Restoration Act, the argument from freedom of expression would certainly not work in regards to justifying general discrimination in regards to goods and services. For example, the owner of a pizzeria would be hard pressed to claim that not being allowed to refuse service to a person just because she is gay violates his freedom of expression. However, freedom of expression might be applicable in certain cases.

While the freedom of expression is typically presented as a right against being silenced, it also provides the right not to be compelled to express views (specifically views that one does not hold or that one opposes). The right to not be compelled in one’s expression would thus seem to give a person a moral (and a legal) right to refuse certain services.

This line of reasoning does have considerable appeal. For example, I operate a writing business—I write books to be sold and I do freelance work. I obviously have no moral right to refuse business from someone just because she is gay, Jewish, Christian, or a non-runner. However, my writing is clearly an act of expression. As such, my freedom of expression grants me a clear moral right to refuse to write a tract endorsing Nazism or one advocating hatred of Christians. I also design book covers and do some graphic work (graphic as in visual, not as in adult content). Since these are clearly expressions, I would have the moral right to refuse to do a book cover for book expressing ideas I regard as morally wrong, such as eliminating religious freedom in favor of enforced atheism. This is because the creation of such work entails a clear endorsement and expression of the ideas. If I write a tract in favor of white supremacy, I am unambiguously expressing my support of the idea. If I knowingly do a cover for a book on white supremacy, then it would be reasonable to infer I agreed with the ideas. In such cases, an appeal to freedom of expression would seem quite relevant and reasonable.

Obviously, an author or cover designer who believes that her religion condemns same-sex marriage as wickedness would also be protected by the freedom of expression from being required to express views she does not hold. If a LGBT group approached her and offered her a fat stack of cash to pen a piece in favor of gay marriage, she would have the moral right to reject their offer. After all, they have no moral right to expect her to express views she does not hold, even for fat stacks of cash.

In contrast, I could not use freedom of expression as a reason to not sell one of my books or works to a person. For example, freedom of expression does not grant me the right to forbid Amazon from selling my books to Nazis, racists, intolerant atheists, or non-runners. After all, selling a book to a person is not an endorsement of that person’s ideas. I do not endorse intolerant atheism just because an intolerant atheist can buy my book.

Likewise, the author who believes her religion condemns same-sex marriage as wickedness 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 (but it obviously does not entail it—I have plenty of philosophy books whose contents I regard as being in error), 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.

Not surprisingly, no one has claimed that religious freedom acts are needed to protect Christian writers from being forced to write pro-gay works. However, it has been argued that the acts are needed to protect the freedom of expression for people such as caterers, bakers, and photographers.

The argument is that catering a wedding, baking a wedding cake, doing a wedding or engagement photo shoot and similar things are expressions and are thus covered by the right to freedom of expression.

Obviously enough, if these activities are expressions analogous to the paradigm cases of speech and writing, then the freedom of expression does protect them. As such, the key question is whether or not such actions are acts of expression such that engaging in them in relation to a same-sex wedding would express an endorsement of same-sex marriage.

To get the obvious out of the way, refusing to cater, photograph or bake a cake for a wedding because the people involved were Jewish, black, Christian, white, or Canadian would clearly be discrimination. If the person refusing to do so said that baking a cake for a Jew endorsed Judaism, that catering a black wedding endorsed blackness, or that photographing Canadians being married was an endorsement of Canada, she would be regarded as either joking or crazy.  But perhaps a case could be made that catering, baking and photographing are expressions of agreement or endorsement.

On the face of it, catering food for a wedding 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 Pathfinder, I do not say “aha, Dominoes endorses role-playing games!” After all, they are just selling me pizza.

In the case of the wedding cake, it could be argued that it is a specific 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. Likewise, selling a person a wedding cake does not entail approval of the wedding. Obviously enough, if a baker sells a wedding cake to a person who has committed adultery, this does not entail her approval of adultery.

It could be argued that bakers 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 refuse to bake a sexually explicit wedding cake or one festooned with gay pride slogans and condemnations of straight “breeders.” However, creating a plain wedding cake is not the 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 to a person because he is an intolerant atheist, but I can refuse contract to write in support of that view.

Since photography is a form of art (at least in some cases), it is certainly reasonable to regard it is a form of artistic expression. On this ground it is reasonable to accept that photography is protected by the freedom of expression. The key issue here is whether taking pictures commercially is like writing words—that is, photographing something is an endorsement of the activity or if it is like selling a book, which is merely selling a product and not an endorsement.

On the face of it, commercial photography would seem to be like selling a book. A person who is paid to cover a war or a disaster is not taken to be endorsing the war or the disaster. One would not say that because a person took a photo of a soldier shooting a civilian that he endorse that activity. Likewise, a person photographing a wedding is not endorsing the wedding—she is merely recording the event. For money.

It might be countered that a wedding photographer is different from other commercial photographers—she is involved in the process and her involvement is an expression of approval. But, of course, commercial photographers who take photos at sports events, political events, protests and such are also involved in the process—they are there, taking pictures. However, a photographer hired to take pictures of Hilary Clinton does not thus express her support (or vote) for Hilary. She is just taking pictures.  Fox News, after all, takes video and photos of Hilary Clinton, but they do not thereby endorse Hilary. As such, the freedom of expression would not seem to grant a commercial photographer the right to refuse to photograph a same-sex wedding on the basis of an appeal to freedom of expression since taking photos does not involve endorsing the subject.

That said, another approach would be to argue that while taking a photo of an event does not entail endorsement of the event, an artist cannot be compelled to create a work of art that she does not wish to create. Since a photograph is art, a wedding photographer cannot be compelled to create an image of a same-sex wedding, just as a writer cannot be justly compelled to write a certain sort of book. This certainly has considerable appeal. After all, a photographer would seem to have every right to refuse to take photos of a wedding orgy or even of a tastefully nude wedding on the basis of the content.

Of course, this would also seem to allow commercial wedding photographers to refuse to take photos of blacks, Christians, Jews, or anything on the grounds that she does not want to create, for example, a photographic work including crosses or black people. So, consistency would seem to require that if wedding photographers can refuse to serve gay clients on the basis of artistic content, then a wedding photographer could refuse anyone on the same grounds. Thus, wedding photographers should be permitted to have “whites only”, “straights only” or “gays only” signs on their business. For artistic reasons, of course. This does seem a bit problematic in regards to commercial wedding photographers.

 

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  1. ajmacdonaldjr said, on April 10, 2015 at 12:25 pm

    Perhaps we need to repeal the 1964 Civil Rights Act and allow people to discriminate by race again?

    This would be more consistent with liberty and freedom. Would it not?

    I’m waiting for Obama to send the 101st Airborne into a state to force that state to marry homosexuals… like Eisenhower sent the 101st Airborne into Arkansas to force the integration of Little Rock Central High in 1958.

    By the way… yesterday was the 150th anniversary of Lee’s surrender to Grant at Appomattox Courthouse.

    That surrender was the death of the Old Republic, and the birth of the Federal Tyranny we have lived under ever since.

    • Michael LaBossiere said, on April 10, 2015 at 5:22 pm

      The right to not be unjustly discriminated against trumps the right/liberty to discriminate. After all, more harm is inflicted by allowing discrimination than by not allowing it.

      I don’t think Obama will send in the troops. This matter will, unless things change radically, be settled by changes in laws.

      I do agree we have a tyrannical state, but this is because most of the “leaders” meet Locke’s definition of tyranny: they are in it for their own gain and not for the general good.

      Anti-discrimination laws do not require approval or endorsement-just grudging tolerance in behavior. That is not too much to ask in a civil society.

      In any case, if same-sex marriage is really a sin, then God will sort people out after they die. No need to worry about it here. Since we are told to “render unto Caesar”. it seems reasonable to think that God won’t hold baking cakes for same-sex weddings against Christians who think it is a sin. He might not be cool with some of their judging or if they act from hate rather than love. After all, God is love.

      • ajmacdonaldjr said, on April 15, 2015 at 10:35 pm

        The right you speak of only trumps other rights in a Federalist Tyranny. That’s my point. Obama need not send in troops… the federal courts are seeing to that. The Federalist Tyranny, again. Tolerance isn’t something thats’s enforced by law and lawsuits… or bayonets… Conformity and Obedience are. Tolerance means you tolerate of your own free will those you disagree with. I wonder how much I would be tolerated if I wore and ISIS tee shirt around town? Even though doing so is legal? Perhaps, if I had enough support for doing so, I could force people to tolerate me and my ISIS tee shirt via laws and lawsuits? Christians don’t support homosexual marriage because we know homosex is a harmful practice. We love homosexuals and want them to make better choices… one’s that’s aren’t self destructive. It has nothing to do with hate. They only hate is from LGBTs directed at Christians who have the balls to tell them the ugly truth. We don’t support heterosex adultery either… for the same reasons.

        • Michael LaBossiere said, on April 16, 2015 at 4:02 pm

          True, tolerance cannot be legislated. However, discrimination can be legislated against.

          Wearing an ISIS shirt would no doubt result in some unpleasant reactions, perhaps even interest from law enforcement. However, you do have the moral right to wear such a shirt (though some folks would regard that as supporting terrorism).

          You have every right to try to persuade people you think are engaged in immoral behavior to mend their ways. But, if they are not harming others, we do not have the right to use compulsion to stop them. Many LGBT folks claim to be Christian and do not seem to hate their fellows. They do, however, seem to be a bit upset with some of what is said (like comparisons between same-sex marriages and turtle humping).

          • ajmacdonaldjr said, on April 17, 2015 at 1:45 pm

            It all boils down to one thing: Homosex has wrongly been equated with race. It is wrong to discriminate against people on the basis of race, because someone’s race is no indication of their character, or moral behavior. Homosex, on the other hand, is an indication of someone’s character and moral behavior. Homosexuals are loud and proud of their immorality and they’re demanding we applaud their immorality. That is quite unlike race. There is no scientific evidence homosex is genetic, just as their is no scientific evidence adultery is genetic. Original sin is a better reason. The main problem with homosex isn’t the act as much as it is the justification of the act. I can commit numerous sins, become convicted of them, repent of them, and ask God for forgiveness for them, because I want to become a better, more moral, person…. but the minute I begin justifying my sins I lose all hope of moral improvement and forgiveness.

            Give this a listen when you have a chance. I think you will find it worth your time: RELIGIOUS FREEDOM: THE FUTURE OF INDIANA AND THE UNITED STATES – http://www.cicdc.org/th_gallery/religious-freedom-future-indiana-united-states/

  2. stephanie said, on April 11, 2015 at 6:37 am

    I might be on the wrong track here, but your focus is on the free speech implications of the law and I see the religious freedom restoration act as connected to the constitution’s protection of religious practice by ensuring that the government would not legally obligate citizens to do stuff that interferes with their religion, or I think in more realistic terms does not unduly burden the free practice of religion. And the limit of this is whether another general law that incidentally hampers religious practice can do so, and then the courts get involved. So in terms of cake baking, if the practice of cake baking is against one’s religion, then the government cannot compel that person bake a cake (unless it is generally compelling all people to bake cakes for an incidentally non religious reason). Freedom of religion can apply to merchants, protecting muslims from being required to serve alcohol, and Jews from being required to operate business on shabbat. I find it hard to think of a scenario where supplying goods and services would stop a person (who in the normal course of their life supplies these things) from practicing their religion.

    However, I think its interesting that the protection of religious freedom has an (ultimately) secular view of religion: that religious life consists of a set of containable behaviors and actions outside of which the individual is fundamentally identical to anyone else. If faith infuses a person’s daily acts, with calls to prayer acts of charity or dietary prohibitions, then every daily act takes on a religious dimension. This is not to say that small business owners therefore should use the immediacy of their belief to punish people with other views.

    I wonder, is ‘heterosexuality’ a religious category– would these same bakers bake for a bar mitzvah or for an atheistic wedding, as long as the participants were heterosexual? Is the business an extension of their personal identity, and therefore bound by the their personal ethics?

    Also, and in my opinion sadly, the LGBT community is not protected under the civil rights act. Regardless of the freedom of religion, homosexuals are not fully protected from discrimination by federal law. This means that the government ‘incidentally’ requires everyone, always and including business owners, not to discriminate against people based on race color sex religion or nationality, even if it comes into conflict with religion. So even though homosexuals are legally allowed to marry, and federally protected from hate crime, they are not specifically protected from casual discrimination everywhere in the US. This, in combination with the fact that business owners are legally able to discriminate between customers based on a number of criteria, such as desirability of completing a job in a given time frame, as long as its not arbitrary, means that bakers could plausibly create a policy against homosexual cake and enforce it in some areas.

    • Michael LaBossiere said, on April 13, 2015 at 3:54 pm

      I certainly agree that a merchant can refuse to stock some items based on her values. So a Jewish deli could refuse to stock pork products and a bookstore could refuse to stock philosophy books. But, one area where this becomes a real problem is the area of medication. Some states do allow pharmacists to refuse to sell medication based on their values which can be a serious problem for someone who needs the medication. To use an obvious example, some folks oppose birth control, but some women need it for other reasons. Ethically, I suppose this should come down to a matter of the public good, the legitimate expectations of the job, and the potential harms to those involved.

      I’m not a lawyer, but if a bakery refused to cater a bar mitzvah because the people were Jewish, then that would probably be illegal. As you note, many states do not include sexual orientation to put a person in a protected class-so refusal of services on that basis would be legal in such states.

      I would be inclined to accept that a business run by one person would be an extension of her personal ethics. After all, it is just her and her actions would fall on her morally. It gets rather more complicated when the business is larger-the question then becomes a matter of determining the values of the legal entity. Laying aside the legal magic of corporate personhood, I’d say it would be like any collective ethics issue as to who determines the values.

  3. T. J. Babson said, on April 11, 2015 at 11:54 am

    Let’s consider the Amish. They just want to be left alone to live as they see fit.

    Mike’s attitude is that they have no right to earn a living unless they conform to the norms of the wider society.

    My question is: who is really being intolerant here?

    • Michael LaBossiere said, on April 13, 2015 at 3:16 pm

      I don’t expect people to simply conform to the norms of the wider society (especially since those norms seem to include watching a lot of TV and not exercising).

      I’m not sure what point you are raising with the Amish. Could you say more about that?

  4. WTP said, on April 14, 2015 at 3:11 pm

    Want to fight the haters? Want to stand up bravely and defy true evil? Try taking on these guys. I’m sure they were in all the papers, just like the Indiana law and such.

    https://m.youtube.com/watch?v=0hPcuw9fYAw


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