Should Christian Bakers Be Allowed to Refuse Wedding Cakes to Gays?

The thorny intersection of anti-discrimination law and freedom of conscience

Conservative pundit Erick Erickson says that "Jesus Christ would absolutely bake a cake for a gay person."* In fact, he says that if any Christian owns "a bakery or a florist shop or a photography shop or a diner," then he or she "should no more be allowed to deny service to a gay person than to a black person."

In his telling, almost everyone agrees. "The disagreement comes on one issue only—should a Christian provide goods and services to a gay wedding," he says. "That’s it. We’re not talking about serving a meal at a restaurant. We’re not talking about baking a cake for a birthday party. We’re talking about a wedding, which millions of Christians view as a sacrament of the faith and other, mostly Protestant Christians, view as a relationship ordained by God to reflect a holy relationship."

He continues:

This slope is only slippery if you grease it with hypotheticals not in play. There are Christians who have no problem providing goods and services for a gay marriage. Some of them are fine with gay marriage. Some of them think gay marriage is wrong, but they still have no problem providing goods and services. Other Christians, including a significant number of Catholic and Protestant preachers, believe that a gay marriage is a sinful corruption of a relationship God himself ordained. Because they try to glorify God through their work, they believe they cannot participate in a wedding service.

Yes, because they believe they are glorifying God in their work and view it as a ministry, they view providing goods and services as a way to advance, even in a small way, God’s kingdom. Herein lies the dispute of the day... We are not talking about race. We are not talking about restaurants. We are talking about a specific ceremony people of faith believe God himself created and ordained. Should the state force people to violate their conscience in that regard?

On those points, Andrew Sullivan agrees. He writes:

I would never want to coerce any fundamentalist to provide services for my wedding—or anything else for that matter—if it made them in any way uncomfortable. The idea of suing these businesses to force them to provide services they are clearly uncomfortable providing is anathema to me. I think it should be repellent to the gay rights movement as well.

The truth is: we’re winning this argument. We’ve made the compelling moral case that gay citizens should be treated no differently by their government than straight citizens. And the world has shifted dramatically in our direction. Inevitably, many fundamentalist Christians and Orthodox Jews and many Muslims feel threatened and bewildered by such change and feel that it inchoately affects their religious convictions. I think they’re mistaken—but we’re not talking logic here. We’re talking religious conviction. My view is that in a free and live-and-let-live society, we should give them space.

This whole debate strikes me as faintly absurd. Since when does supplying a cake or flowers to an event signify one's endorsement of its contents? (I'd happily bake a cake for the NSA holiday party next year if the gig pays enough.) But I agree with Sullivan. Gays and lesbians ought to have the court-enforced right to marry everywhere in America. Happily, they will achieve social equality in short order even absent laws that coerce Christian businesses to extend equal treatment even when highly particular issues of conscience pose an occasional conflict.

My views on this subject are colored in part by having known orthodox Catholics who wouldn't provide a cake or take photographs for a gay wedding for non-bigoted reasons. I say that with confidence because while I never actually knew them to actually encounter a gay wedding, I saw them refuse to attend weddings of folks on their second marriages, as well as straight weddings (one involved a member of their immediate family) where the couples chose to marry outside a church (that is to say, they had a Christian ceremony, though not an official Catholic mass, that took place in an outdoor space rather than a consecrated hall).

Now, to me, the notion that Jesus Christ, their personal Lord and Savior, would want them to boycott the wedding of two practicing Catholics because they married on a patio instead of on the altar of a Catholic Church seems obviously wrong. In fact, I actually think they acted contrary to the spirit of Jesus's teachings.

But I can respect their right to think differently, and if they told me that they wanted no part of a gay wedding not because they have anything against gays, but because they're committed to participating only in sacramental marriage as their church defines it, I'd have no problem believing them. I certainly don't think they should be coerced into doing otherwise if they own a wedding-related business. Is it really worth depriving a tiny religious minority of following their conscience or their livelihood to make a point that has little bearing on gay equality? The plight blacks faced circa 1950 was sufficiently atrocious to justify extreme remedies, including the coercion of private businesses.**

A plausible case can be made that gays today need special protection from bullying and violence. Nothing about their access to wedding-industry goods and services is even remotely comparable to the reality that justified civil-rights-era coercion, though I'd personally boycott wedding businesses that didn't welcome gay customers.

Put another way, I won't deny the ugliness of refusing to sell someone a wedding cake because of their sexual orientation ... but neither will I deny the ugliness of sending agents of the state to compel a person to violate their conscience or close shop.

Still, what I can't help but wonder, when I hear about Christian businesses boycotting gay weddings, is how many of those businesses also refuse to take photographs or bake cakes for other marriages that don't strictly conform to Biblical codes. I suspect many, though not all, who object to gay marriage actually do have a specific problem with gays and lesbians. (I've known Catholics like that too.) And while I don't want the state coercing anyone to bake cakes, I do think people with hateful views towards gays should be subject to shame and, more importantly, persuasion. The case for gay rights is very convincing, especially when it involves exposure to gays. Haters grow more rare and powerless every year.

And while I don't believe that gay bakers, florists, or photographers ought to refuse to provide goods and services to Christians—I want everyone to sell to everyone!—if servicing a faith community that has negative views of gays and lesbians strikes them as morally wrong, I'd stand up for their legal right to discriminate.  Freedom of association and conscience aren't just due to religious folks. (If orthodox religious believers can imagine themselves stuck on their wedding day because their florist cancelled and the only one there to serve them is a gay man offended by their faith, I imagine they'd hope that gay man would "do unto others ...," which is what Christian florists ought to do when gay couples come in.)

One more thing.

Although Erickson's latest post proceeds as if his position is a narrow defense of a business owner's right to refuse wedding services to gay couples, the Kansas legislation he's endorsed is much broader than that, as Josh Barro explains at Business Insider:

The bill would protect the ability of any individual, government agency, or "religious entity" (which includes a business operated in accordance with its owner's religious views) to refuse service based on sincere religious beliefs about sex or gender, and to refuse to recognize any marriage or similar arrangement for those reasons — even if such service would otherwise be required under Kansas law.

In other words, a special new right to discriminate on a particular basis.

Republicans aren't normally keen on creating special workplace rights for public employees, but this bill would let government workers refuse to do their jobs if doing so conflicted with such sincere religious views. Let's say you work for the Kansas Department for Children and Families and you don't want to process a foster care application from a same-sex couple, even though that's within the agency's policy. Or you're a police officer and you don't want to respond to a domestic abuse complaint from a same-sex couple.

If this bill becomes law, that will become your right.

The bill even creates a special new employee right for anti-gay people working in the private sector. Let's say you work for a national chain supermarket with a policy against discriminating on the basis of sexual orientation, and you're asked to make a cake for a gay wedding. Now, you can refuse, and your private employer "shall either promptly provide another employee to provide such service, or shall otherwise ensure that the requested service is provided, if it can be done without undue hardship to the employer."

If I owned a bakery or a photography studio, I'd hire my assistant without inquiring into his or her religious background, and I'd eagerly serve gay weddings. What would I do if the assistant then said his faith didn't permit him to work such events? I'd say, "Sorry, I need an assistant who can work gay weddings—good luck finding a new job!" Shouldn't bakery owners have that right too?
This whole issue strikes me as a case where coerced nondiscrimination would wind up making almost no one better off—how many people want their wedding serviced by people who object to their union?—while making a small number of Christians and most gays worse off, the former because they'll face the conscience/legal sanction dilemma, and the latter because the battle for public opinion that gays are quickly and decisively winning can only be set back by aggrieved Christian bakers in the headlines. If policymakers just do nothing, the problem will get smaller with every year that passes, because anti-gay animus is rapidly decreasing, and once it's gone, the number of religious believers who'll still object to gay weddings to the point of not selling goods to them will be minuscule.
And we'll all live happily ever after.
* Angel food, presumably.
** As Julian Sanchez once pointed out in an excellent essay, civil-rights-era blacks would have been "systematically denied equal participation in society absent state correction."