Wednesday, October 4, 2017

Should religious bakers be able to conscientiously object to making wedding cakes for gay marriages?

One of the main sticking points in the gay marriage debate is the question of how freedom of religion should be protected for devout religious people who do not want to participate in, or personally craft their goods for involvement in, same sex weddings. In this blog post, I want to think through some of the arguments and issues involved in allowing bakers (and florists, etc.) to refuse goods and services to gay weddings, on the basis of a religious conscientious objection.

Normal cases of conscientious objection
Let’s begin by recalling some standard cases of conscientious objection. There are two well-known areas where conscientious objection is specifically allowed in law in many countries. The first case is where a soldier, perhaps one drafted into the war effort, refuses service (especially active combat service) on the basis of a conscientious objection against fighting in the war. The second case occurs where a doctor, usually on the basis of religious beliefs about the sanctity of human life from conception, refuses to take part in performing an abortion.

A few points are worth nothing. First, in the usual cases, the conscientious objector is not objecting to performing an action that implicates them indirectly in some larger activity with which they have moral concerns. Rather, their moral concerns attach directly to the action they themselves are being asked to perform. The soldier is being put in a situation where he might have to actually kill enemy combatants. The doctor is being asked to perform the abortion herself, or to have it performed on her professional authority.
Second, given the convictions of the conscientious objector, the actions in question are very serious moral evils, even mortal sins. Given their beliefs, both objectors would consider the action in question to be the most heinous of crimes – murder.

Third, even when conscientious objection is protected in law, it may still involve the objector playing some role in the performance of a larger activity. The soldier may still be required to play a non-combat role in supporting the war effort. The doctor may still be legally required to let the patient know of the availability of medical options for terminating the pregnancy, and perhaps to refer the patient to another doctor willing to perform the operation.
Do these qualities also appear in the gay marriage issue? Consider civil marriage celebrants who have religious convictions against gay marriage. If such celebrants are allowed to conscientiously object, then the third issue will not really arise, provided there are plenty of other celebrants happy to perform the role. (This condition may not be fulfilled in rural settings.) I am a bit dubious about whether the second condition really applies – as to whether performing the wedding would be a grave moral sin. It is plainly not in the same category as murder. But there is no question that the first condition applies. The civil marriage celebrant is not merely being implicated in the wedding. They are taking part in it and it is happening under their authority. They are – quite literally – performing the wedding. For this reason, it seems to me reasonable enough to create a dedicated category of religious civil celebrants, and allow them to only perform marriages with which they are comfortable. (This policy is already a part of the main legislative proposals being put forward, and I will presume that any legislation following a YES result would include it.)

But what about bakers and florists? In these cases, the above-noted qualities of conscientious objection don’t apply. While bakers and florists may use their creativity and skill to infuse their work, their role is still only one part of the larger marriage ceremony. They create (perhaps bespoke) goods and services for the wedding, but they are at most indirectly implicated in it, and any sentiments expressed in their work are an expression of their customer, and not their own.
Still, while this may show us that use of the term ‘conscientious objection’ is not very apt in this case, that alone does not demonstrate that bakers and florists cannot be allowed to refuse service.

Existing exceptions for religious organizations
Religious institutions like churches, religiously-run schools and religious organizations have many powers to make decisions on the basis of their religious convictions, and to avoid the anti-discrimination laws that a normal business must accept. (This does not allow morally awful types of discrimination, of course, like race-based discrimination.)

But private, profit-seeking organizations like bakeries and florists are unlike officially designated religious organizations in lots of ways. For example, a religious organization’s beliefs and convictions can be known, and publicly expressed, ahead of time. This means that those seeking services need not be subject to rejection and moral posturing by service-providers at the point of sale. It means that those who disagree morally with the religious organization’s stance are free to make their own informed decisions about interacting with it and using its services. And it means that the religious organization’s hypocrisy on any of its standards can be called out.
The situation is very different for individual service-providers, if they are able to pick and choose which customers they serve. Indeed, if at any time they decide to relax their standards (perhaps for a very profitable service), or to change their policy for profit-related motives, there is no mechanism to prevent their doing so. Their decision-making can be entirely arbitrary.

Again, this does not show that bakers and florists should not be entitled to turn away those seeking their services, but it does show why it is quite reasonable to think that religious institutions should be allowed to discriminate, on a consistent and good faith understanding of their convictions, but that ordinary shop-keepers should not.
No easy answers?
One of the things that makes this issue difficult to sort out is that there are obvious cases where it seems wrong – and where it seems right – to refuse service on the basis of personal convictions.

An example where forced complicity in the action is odious would be a Jewish baker asked to bake a cake commemorating Hitler’s birthday for the local white supremacists. Another might be a florist being asked to send valentine’s day wishes and special floral arrangements to a man’s wife – and his girlfriend.
Equally, there are cases where a service- or goods-provider refusing service on the basis of their deeply-held beliefs is plainly awful. Being refused service on the basis of one’s race is the obvious example here. Worse still, if such practices were widespread, then they impact directly on any number of human rights, because of the way most developed countries rely on the market to deliver services and goods that provide substance to our rights.

But a few questions…
There are a few parts of this concern for conscientiously objecting bakers that I find a bit puzzling. These may not manage to show that they should not be protected in law, but I think they do illustrate that the practice is not innocuous from a social and moral point of view.

Why aren’t bakers already refusing other irreligious weddings? (Such as baking wedding cakes for atheists, heretics and fornicators?) In fact, why aren’t their deeply-held religious beliefs appearing in myriad other places in their business practice?

If we can use the examples of Christians for a moment, think of everything Jesus said about the problems with the rich and the need to help the poor. This issue directly impacts on the nature of profit-seeking enterprises and the work they do, and who they do it with. It puzzles me that conscientious objection is suddenly becoming a serious political concern in the context of gay marriage, when – if religiously-based refusal of service really warrants legal protection – we would routinely see it in myriad other economic contexts.

Why is this issue  only being spoken about in terms of small business owners? Surely, if it is to be a legally enshrined right for business-owners to refuse service for religious reasons, then the same considerations will impact on employees (both those serving customers, and those performing the work) and property/venue owners (who may own the building, with the baker leasing the property). These people are just as likely to be religious as anyone else – but what happens when they find that their work or property is being used to provide services with which they harbor deep religious disagreements? Or even if they find that their work or property is being used to refuse services, on grounds they find objectionable on social justice grounds? Will these groups inherit the same entitlements to refuse consent as business-owners? And what happens in the inevitable case where these entitlements clash, and we have disagreements between venue-owners, business-owners, and employees?
I think we are owed a detailed explanation of how religious-based refusals will work in the context of overlapping claims of employers, business-owners, employees, shareholders and property/venue owners, at least in any cases where they can reasonably complain that they are being forced to be complicit in an activity with which they have a good faith disagreement.

In recent months, conservatives have been alarmed at several ways in which conservative advocates and positions are being treated in various arenas, such as cable channels refusing to play political advertisements advocating for the NO vote, or venue owners refusing to allow conservative organizations or speakers to hire their venues. Conservatives have also criticized sporting institutions, professional bodies and large corporations for intruding into politics when they advocate a YES vote. Sometimes, there has even been pressure for conservative/religious corporate executives and others to resign because of activist campaigns against them, and there have been successful campaigns and boycotts against companies on the basis of their non-progressive positions.

There are many different moral concerns implicated in each of these issues – but there is something they have in common: they inject political decision-making into arenas that are usually somewhat quarantined from such partisanship. In some cases, this is not very serious, such as footy teams coming out with a particular stance. But in others, it is very serious, such as campaigns trying to pressure organizations into sacking an employee.
Giving bakers and florists the license to refuse service does much the same thing. If it is okay for bakers to refuse service because they don’t want to be complicit in gay weddings, then surely that gives us good reason to think that cable providers or venue-owners should be entitled to refuse conservatives – and not even on the basis of threats of boycotts, but just because they have conscientious objections to their property and work being enrolled in the service of political positions to which they object.

Ultimately, what is good for bakers will be good for a whole range of industries. If designing, baking and writing the desired words counts as a free speech issue for bakers, then the same argument will apply for advertising platforms, sign-writers, search engines, cable television providers, function rooms, industrial printers, and more. If conservatives think it is wrong, unfair and socially damaging for all of these institutions to refuse services to those using them for conservative practices, then surely the same must be true for bakers and florists acting on the same principle.
‘Civic tolerance’
In making the above-noted complaints against discriminatory decision-making in the market, conservatives (in my view) rightly draw attention to how much we all rely on a level of neutrality from all sorts of service providers to make sure that our rights to services, travel, employment and speech are genuinely realized.

We could express this by appeal to a notion of ‘civic tolerance’. A citizen displays civic tolerance when they say:
“I disagree with your speech, action or practice, and I reserve my right to speak out against it, and to perform different actions in my own life. But I acknowledge that your speech, and your actions, and your practices, are bound to have material requirements, and that you will need various goods and services to perform them. (These may include: A venue to hire for you to speak at. A printing press to print your words. A television channel to play your paid political advertisements. A taxi to take you to your event.) Part of my tolerance of our political differences will be to treat you equally to all my other patrons, clients or customers, when it comes to the performance of my professional or business roles.”
It seems to me that this spirit of civic tolerance is an often-unnoticed and uncredited source of social harmony, equal respect, and the realization of human rights. It is a cultural norm against being a busybody or an extreme partisan, against a world where each of us are judged upon our personal and political views and impeded on that basis, and against a zero-sum vision of society as an endless contest against the other, where every available measure should be employed against those who think differently to undermine their power and silence their voices. Civic tolerance prevents us from being forced to live our lives in identity-based bubbles, where we only interact with people like us, because everyone else will subject us to their moralizing judgments before they decide whether to treat us as ordinary customers or clients. As such, it is a virtue that gives us space and freedom to live our own lives.

If I am right about this, then it turns out that ensuring conscientious objections for bakers is not very conservative at all. In fact, the desire of bakers to interject their own judgments about others’ practices into the provision of goods and services is one symptom of a much larger social movement (at least as prominent on the left as on the right side of politics) that is pressing back against traditional civic norms.
But even if it is morally worrying, does that mean it should be illegal?
If everything I have said here is on the right track, then we should be wary about the increasing practice of those on both sides of politics to inject their religious, moral and political views into ordinary civic, professional and commercial practices (except in the most vivid cases).

But does this mean I have made a case for such actions to be illegal – for the force of law to prevent their occurrence? It does not. To argue that something is immoral or socially damaging is not to show it should be prohibited in law.
But it does, I think, suggest that we should be wary about thinking about gay marriage in exceptional terms. It is not a unique area, walled off from the rest of the world. Countless types of goods and services provide us with the resources we need to act on, and speak about, our values. The provision of many of those goods and services conceivably could be refused by those who do not want to see their work playing a role in practices with which they disagree. If we are worried when this practice is used against those who share our religious or political persuasion, then we should be just as alert when it is used against others with whom we disagree. Having a consistent law that applies across the board ensures that we are not legislating one rule for us, and another for everyone else: a sure sign of injustice.


(This post is one in a series, looking at the arguments in the gay marriage debate.)

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