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.

Consistency

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.

Universality

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.

Reciprocity

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.)

Gay marriage: ‘We should not even be having this debate!’

The argument that political debate on gay marriage is harmful, and should therefore be avoided or at least minimized, has been voiced by a number of those on the YES side, including at the very highest levels of government, and it remains an ongoing feature of the popular public discussion.

These arguments were initially made in the particular context of the conservative side of politics aiming to undertake a plebiscite on gay marriage. And in that context it was true both that the plebiscite was not legally necessary, and that it was a process that was bound to increase the visibility and heat of any ensuing debate. (As it unquestionably has, with ample vitriol, if not violence, on both sides.)

But many of the statements made on this matter – both at the time and since – have a quite general application, in the sense of bringing into question whether it is wrong for us to be having a dedicated public debate about this issue at all. For example, such arguments would apply to making an election issue out of the topic.

No doubt there are cases when the harmfulness of political speech does indeed provide strong reasons for shutting down debate on a topic. Hate speech constraints are a well-known example, and history furnishes no shortage of links between vicious racist speech and ensuing ethnic violence.

Yet any arguments for avoiding public debate on an issue must consider the moral costs of such a policy. In my view, there are deep ethical concerns with the argument that, on the basis of concerns with potential harms, we should avoid having a political debate about issues like gay marriage.

Let’s get clear about the principle at work here

Most often when this assertion is made, it is unclear what the deeper principle is that underlies its specific application in this case. In other words, if the argument against popular political discussion works in this case, then there must be other cases where it will also work, because there is some underlying principle that tells us when and how popular political discussion should be rightly avoided.

My attempt to give a sympathetic account of the underlying principle is as follows:

In cases where experts agree that popular discussion of a particular political issue will be damaging to a particular class of vulnerable people, we have a strong reason to avoid that debate.

Now I need to stress that this is just my attempt to portray the general principle. A YES proponent might actually have something subtler in mind. But this principle will give us something to start with, and may help us devise an improved one in due course.

Some questions. Actually, lots of questions.

If something like the above principle is meant to justify calls to avoid debate, then an array of serious moral questions arise.

Question 1: How strong is this ‘strong reason’?

It’s pretty straightforward that the above considerations do create at least some reason to avoid a public debate, in the sense of not starting one unnecessarily. If there is widespread support for a policy across all major parties, or if a government that announced the policy as part of their election promises, and then was voted into power with a sufficient majority to legislate that policy, then it makes no sense to start up a debate that would carry serious costs, and with little benefit. The legislation should just be completed in a quick and expeditious matter.

But it is very different to say the reasons are strong enough to actively discourage a public debate that is already occurring – or to say that we should avoid discussion on an issue where there are large-scale (and passionately held) divisions across the voting population, for example, in a case where polls indicate that about a third of the population disagrees with the majority opinion.

Question 2: Who are the experts on whether harms will occur?

The principle above, if it were to be rigorously followed, would place an awfully large amount of political power in the hands of the ‘experts’ who make judgments about the harms involved. After all, they will be effectively empowered to decide which issues are to be quarantined from normal democratic deliberation.

Presumably these experts will be professionals (like psychologists or psychiatrists), or academics with the relevant specialities. Naturally, most of what these experts say would be accurate and evidence-based. But universities and professions are subject to the same frailties (moral and cognitive) as every human institution – especially once that institution is granted political power. I do not think one needs to be excessively cynical about human behaviour to think that there are serious worries with this arrangement. Whether or not power corrupts, there can be little doubt that it attracts the corrupt.

Question 3: Who are the experts who decide who will count as vulnerable?

The same concerns will arise for the question of who gets to count as vulnerable – and who gets to make that assessment. But the situation here is worse than with the prior question. In this case, the questions are less about strict sciences like psychology, and more about evaluations about the moral significance of different sorts of vulnerability. Apart from some really obvious cases, this is something that different political philosophies are bound to see differently. (Consider: do all vulnerabilities count? What if it turns out that some white supremacists are extremely defensive and emotionally vulnerable? Should we care? Or not?)

Furthermore, some philosophies may even wonder why we should focus on vulnerable people at all. Maybe all speech that can have significant harms should be discouraged and avoided – even if those harms would befall people who are not otherwise considered vulnerable, such as people who agree with the majority position on an issue. But making this modification to the above principle would greatly expand its application, placing even more power in the hands of experts.

Question 4: Is this a special case?

Perhaps it might be responded that it is okay to avoid debate in the special cases where the issue is a morally straightforward one, about which no reasonable person can really have any qualms or questions. But as I am hoping to show with this blog series, on the issue of gay marriage, there are certainly concerns that a reasonable person may at least want to raise, and get considered on the merits. Now I think that considering these arguments on the merits gives us very powerful reasons to legislate in favour of gay marriage. But that is a claim about the end results of a critical discussion. It is very different from the claim that we do not even need a critical discussion.

Perhaps instead it might be objected that we do not need public discussion in the special cases when the issue is really just a question of equality before the law, and of fundamental human rights. But there may in fact be arguments – such as the ones I have already made this blog series – that (at least initially) challenge whether the issue really is one of equality and fundamental rights. Shutting down the debate on these issues will shut down any possibility of debate on whether this is an issue on which we should in fact be shutting down debate. In other words, following this debate-avoiding principle on an issue also shuts down the meta-debate about whether this is an issue that should be subject to the principle.

Moreover, even if the issue is unquestionably about fundamental rights and equalities, that doesn’t necessarily tell us whether other important rights and freedoms are implicated in the policy change, and how these should be managed, and what compromises might need to be implemented. Again, we would need public debate to think through, and sort out, these issues.

Question 5: Why aren’t other things done to avoid the potential harms?

Suppose it was beyond dispute that an aggressive, divisive political dispute on a given issue would create substantial harms on vulnerable people. It may also be true that this result could be avoided by paying attention to other parts of the social context and political situation. For example, if one wanted to improve the tone of political discussion in order to bring down the level of divisive heat and anger, then political parties and activist groups could make either bilateral or even unilateral commitments to improve their own behaviour in such discussions. They could try to live up – with self-restraint, discipline and dignity – to a code of conduct that eschews any use of language the other side might find derogatory, and that tries to listen and respond carefully to other’s viewpoints. Events could be organized with like-minded discussants from the other side of the debate, where polite, reasonable and adult discussion could be exemplified. 

No doubt this sounds fanciful, and it is probably impossible to imagine parliamentary question time in Australia without our political leaders booing and hooting at each other like unruly children. But the underlying point remains true. A whole array of social behaviours and practices lead to any given social outcome. To say that A leads to B may be true. But it may also be true that A only leads to B in the context of background social conditions X, Y and Z. And it may be that if we really cared about B, and thought that B was an outcome of over-riding importance that we needed to avoid, then we should be bringing X, Y and Z into the discussion as well. (If that means we have to impose kindergarten-level codes of conduct on our political leaders when they engage in formal debate, then so be it, I say.)

Question 6: How are decisions to be made if they are not to be publicly discussed?

This is perhaps the most significant query. Once the experts have had their say about what counts as a harm, and what counts as a vulnerable person, and everyone has agreed that having a discussion would be too costly (or maybe this judgment is also made by the experts?), how on earth is the actual decision to be made? It cannot be to simply make no decision, and to leave things as they are, because, a) leaving things as they are itself constitutes making a decision, and, b) the entire point of the YES argument in this context is to change the existing law.

Perhaps the idea is that the decision-making will still occur by the parliament or the reigning political party, but without any significant public discussion. But I struggle to believe that anyone would accept this line of argument unless they knew they already had the numbers at the time they voiced it. It is also perplexing why we should solve the issue by appeal to elected leaders, given that a key part of the justification for respecting democracy is – at minimum – that the voters have been sufficiently informed about the leaders’ political views on the relevant issues. More thoroughgoing justifications for democracy can even include appeals to public deliberation itself – exactly the property that the above principle aims to shut down.

Conclusion

The key point here is that the arguments for shutting down public discussion look – on their face at least – to be profoundly undemocratic, and therefore to have serious implications in terms of procedural justice, public accountability, the legitimacy of law, and the human rights of communities to political participation and self-determination.

To be sure, the above arguments are not definitive, and it may be that a principle can be fashioned that avoids these moral concerns, and that shows that decision-making on the gay marriage issue (and other similar issues) should be protected from popular political discussion. But I submit that this argument has not been made. Until it is, I think it is premature to assert that this is a discussion we should not even be having.

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