The U.S. Supreme Court ruled on 26 June 2015 that same-sex marriage is legal throughout the nation. The ruling attracted renewed attention to the dilemma facing officials and business owners who don’t wish to play a role in same-sex marriages. Actually, the issue had already been widely exposed in the media with an Oregon anti-discrimination case. Sweet Cakes Bakery refused to bake a wedding cake for a lesbian couple in 2013, on religious grounds. The couple brought suit under the state’s 2007 Equality Act, which exempts religious organizations but not businesses. An administrative law judge ruled in April 2015 that the bakery owners must pay $135,000 in damages to the couple. There are many issues here, but an obvious one is whether a bakery should refuse its services to same-sex weddings.
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The media often portray this highly-charged issue as a conflict between gay rights and religious freedom, but there is a more basic question involved. When, if ever, should merchants refuse to get involved in activities they judge to be immoral?
I am assuming that no one in this dispute favors denying service to customers simply because they are gay or lesbian. The Sweet Cakes owners would be perfectly willing to bake birthday cakes for the lesbian couple, or so I will suppose. They object to the wedding cake because it would make them accessories to what they see as an immoral practice (gay marriage).
I grant that it is not so obvious what makes one an accessory to a wedding. Maybe the cake is not really part of the wedding, and baking it is more like selling gasoline to the couple as they drive home from the ceremony. But for the sake of argument, let’s suppose that supplying the cake would implicate the bakers in what they view as immoral activity.
I won’t address the public policy question of whether the state should require merchants to service same-sex weddings. It is hard enough to figure out what the individual merchant should do. In fact, I will suppose for the moment that refusing service is legal, so I can focus on the underlying ethical question.
We should first ask why merchants shouldn’t deny service to anyone they please, so long as it doesn’t create a hardship for customers. Why can’t Sweet Cakes ethically cater only the weddings that interest them, as long as nearby bakeries are willing to serve those they turn away?
One argument is that the market economy in which Sweet Cakes wants to participate relies on the fact that buying and selling is based on quality and price, and not on economically extraneous factors like sexual orientation. This not only increases market efficiency but arguably makes commerce as we know it possible. If so, being choosy is not generalizable. If people had to check out several grocers or haberdashers to find one who approves of their hairdo or accent, the market system in which we want to operate would not work, or so goes the argument.
Maybe it is OK to be selective in specialized services, as when architects turn down projects that don’t interest them. But in a market that is characterized by people walking in off the street and buying a product, people have to be able to walk in off the street and buy the product.
There is some validity to this, but it is a squishy argument. Selectivity is generalizable, for example, if it is based on a recognized category of service. It is OK for a restaurant to post a sign, “No shoes, no shirt, no service,” because this places the restaurant in a category where a certain dining ambience is provided, as opposed to a casual eatery on the beach. We could see the evolution of market niches for heterosexual wedding caterers, same-sex wedding caterers, and we-don’t-care caterers, much as we see hair salons for men, women, and both sexes.
It is not enough, however, simply to say we could have a given kind of market niche, because discrimination on this basis alone is not generalizable. Bakers could refuse to serve people with freckles (or any other trait) on the ground that we could have bakeries for the freckled and bakeries for the non-freckled without disrupting the market. This might work for one such distinction, but not if everyone’s distinctions were to be generalized. However, if there are already recognized and readily available market segments for the freckled and nonfreckled, or if there is clear evidence that such segments will soon develop, then discriminating against the freckled is generalizable on this basis.
There is some evidence that the Supreme Court decision is spawning a market niche for same-sex wedding caterers. If this trend continues, Sweet Cakes can ethically refuse to enter this market.
In the meantime, refusing service specifically on moral grounds may be ethical even when there is no prospect of recognized market segments developing. Maybe a practice of rejecting business whose acceptance is immoral is generalizable, because this situation does not arise often enough for a generalized policy of this kind to disrupt the market. At least, perhaps this is so if one is rational in believing that acceptance of the business is immoral, rather than simply having an opinion about it.
The clearest cases are those in which providing the service would aid and abet a crime. It is ethical to refuse to repair a bank robber’s getaway car, if you know it is a getaway car. Being an accessory to a crime is usually illegal, and illegal conduct simply for the sake of making a sale is not generalizable. This doesn’t apply to the wedding caterer, of course, because getting married (to either sex) is not a crime.
The case is harder to make when the customer’s activity is legal, simply because merchants almost always service customers involved in unethical activity when it is legal. A merchant will sell me a mobile phone even if I tell her I use it to cheat on my exams. So any practice of commercially facilitating unethical (but legal) activity is likely to be generalizable because it is already generalized.
However, maybe the bakery owners can overcome this hurdle. They might argue that if people were willing to acquiesce in gay marriage whenever it is convenient or profitable, then same-sex marriage would proliferate, which would undermine society as we know it and defeat any purpose of acquiescing in the first place. I can’t defend all the steps of this argument, but let’s suppose that the bakery owners have researched the matter and can. Then they can ethically refuse to cater the same-sex wedding.
Some readers may be uneasy with the idea of justifying discrimination on the basis of existing market segments. Societies have long recognized market segments restricted to a certain race, which would seem to justify racial discrimination. It doesn’t, however, because the immorality of racial discrimination is not due to a violation of market generalizability. Racially-based market economies can function and have done so for millennia. The problem with racism is more elementary: it is cruel. It is unethical to be cruel to people, because it is grossly nonutilitarian and may violate autonomy as well.
Gay couples may insist that refusing them wedding services is likewise cruel, even though it is not based solely on who they are. Even though the Sweet Cakes owners are perfectly willing to make them a birthday cake, and even though they would presumably refuse services to a straight friend or relative who organizes the same-sex wedding, their actions have the psychological effect of rejecting the gay couple based on who they are, and this is cruel.
This is a claim I cannot evaluate, but if it is true, then we must next ask whether it is a sort of cruelty that violates autonomy. If so, it cannot be justified, but this seems like a stretch. The couple may well resent being rejected and find it inconvenient and embarrassing, but assuming that they can buy a cake elsewhere, it’s not obvious that we have an autonomy violation. Until someone makes a case for the contrary, I will assume the problem is one of negative utility rather than autonomy violation.
To decide whether it is OK for the bakery owners to create this kind of negative utility, we must understand why they believe they must stay away from same-sex marriages. It is not enough for them to show that same-sex marriage is wrong. They must show that it is wrong for them to be commercially involved in it
They may see gay marriage as disutilitarian, perhaps because it will be bad for the kids the couple raises. However, their involvement in the wedding will almost certainly have no effect on the resulting utility, because the couple will marry with or without a cake from Sweet Cakes. So the utilitarian principle doesn’t require the bakers to stay out of the affair.
However, the bakery owners may have nonutilitarian reasons for disassociating themselves with same-sex marriage. Maybe they have a generalization argument, as I suggested above. We cannot resolve the matter until we know what the argument is. Same-sex marriage is too complex an issue for me to assess various arguments here, but whatever the outcome, it is not enough simply to have an opinion. One must have an argument that justifies a rational conclusion, and this requires a good deal more thought and research than many people invest in the issue.
Whatever the outcome, we can say this much: assuming that doing so is legal, one can ethically turn away business that would make one complicit in a same-sex wedding if (a) there are, or we can reasonably anticipate will be, readily accessible market niches for same-sex/heterosexual wedding caterers, or (b) one does the honest work of constructing a reasonable case that catering a same-sex wedding is wrong, based on other than merely utilitarian grounds.
I have been assuming that refusing to service same-sex weddings is legal, but a judge ruled that it is illegal in Oregon, where Sweet Cakes is located. This makes the issue harder. Violation of the law is normally ungeneralizable, but the Sweet Cakes bakers can say their action is civil disobedience: they are violating the law because it is unjust. Civil disobedience is a complex issue that has been debated for centuries, and most of the analyses impose rather strict conditions for when it is justified. One is that the offender must voluntarily submit to the legal penalty. However, the Sweet Cakes owners may meet these conditions, and if so they have case that they can ethically refuse service to a gay wedding in Oregon.