Over the past several years, there have been a number of reported incidents in the U.S. where a bakery has refused to make a wedding cake for a same-sex wedding. In the latest case, a bakery in Gresham, Oregon refused to bake a cake for a wedding between two women, citing religious objections. One of the aggrieved fiancées has filed a complaint with the state attorney general’s office, which is now investigating whether the bakery violated an Oregon statute prohibiting discrimination in public accommodations.
This incident illustrates a wider phenomenon—unwillingness to pursue liberal values when it comes to the politics of sexual orientation. By liberalism, I mean the strain of European political philosophy that arose in the eighteenth and nineteenth centuries partly as a reaction to the devastating religious wars of the sixteenth and seventeenth century, most particularly the Thirty Years’ War that killed eight million people in central Europe. Liberals like John Locke, Adam Smith, David Hume, and John Stuart Mill stressed individual rights, limited government, and freedoms of speech, press, religion, contract, and property as antidotes to such bloodshed. They aimed to allow people with fundamentally different world views to contribute jointly to the projects of government, order, and civil society with minimum friction. Liberalism is the philosophy at the heart of the enduring American constitutional order.
Alas, liberalism is losing out in the culture wars. The gay wedding cakes battles are representative of a wider disease that infects people in both camps—invoking the power of government to endorse and enforce one’s world view on matters of sexuality and identity. Rather than just saying, “I’ll take my business elsewhere,” the impulse is to call the attorney general’s office in support of one’s position, as though law and politics were the appropriate fora for deciding the morality of sexual identity and practice.
The predominant forces in both camps are pushing anti-liberal agendas. In 2004, the Virginia Legislature passed a statute invalidating private contracts between gay people if they replicated the incidences of marriage. Conservatives continue to resist political settlements on same-sex marriage that would shift marriage decisions from the state to individuals and private communities. On the other side, progressives are fighting to enshrine their views in marriage and antidiscrimination laws and school curricula. In the Chik-fil-A flap last summer, progressive politicians around the country threatened zoning prohibitions or other deployments of state power to fight the forces of “hatred and intolerance.”
Where are the liberals? Where are the people willing to say: “As much as possible, let’s not decide these questions in the arena of the state. Let’s let them play out in families, churches, religious communities, social networks, friendships, businesses, and private associations. Let’s resist the impulse to make these kinds of divisive moral and religious questions political questions. Let’s not fight another Thirty Years’ War.”
Let me try to preempt some likely objections with two concluding observations.
First, a liberal disposition cannot be confined to circumstances where one disapproves of someone else’s conduct but it causes no harm to others—because that’s an empty set. It’s child’s play for lawyers, philosophers, and economists to demonstrate that almost anything one person does affects other people. When the baker refuses to make the wedding cake, it imposes real distress, humiliation, and inconvenience on the person requesting the cake. Conversely, having to make the cake would impose real offense and moral indignity on the baker. Liberalism doesn’t depend on a view that one of the parties really isn’t hurt, any more than free speech depends on a view that words can never be hurtful. Liberalism is a disposition that says “the state must let pass these sorts of harm—they do not rise to the level of force and fraud where state intervention is justified.”
Second, to espouse liberalism isn’t to pretend that the state never has to make political judgments on issues of sexual orientation. Since the state runs the military, it must decide whether gay people can serve in the armed forces. Since the state regulates adoptions, it must decide whether gay people can adopt. And there are of course other examples. But the fact that it is sometimes unavoidable for the state to wade into these thorny issues does not justify the state wading in when it doesn’t have to. The great project of liberalism is to strive continually for resolutions that don’t involve the state deciding divisive issues of meaning and morality that require choosing between contending world views. This isn’t always possible, but it’s possible much more of the time than it happens.
Calling all liberals . . .
Regarding “Liberalism is a disposition that says ‘the state must let pass these sorts of harm—they do not rise to the level of force and fraud where state intervention is justified.’”
As attractive as this thought is, I have to push-back against it. The paragraph which ends with this thought describes two conflicting harms: “When the baker refuses to make the wedding cake, it imposes real distress, humiliation, and inconvenience on the person requesting the cake. Conversely, having to make the cake would impose real offense and moral indignity on the baker.”
Saying the State will pass on these sorts of harms means that the baker (in this instance) always wins. Why not let the person requesting the cake take their complaint to court and let the community (through a jury) judge the matter? Because it would be an imposition on the baker? So what? The baker has imposed on the buyer; why should the State always side with the baker?
Probably the State should not intervene with criminal sanctions, but why foreclose civil complaints?
If the matter was about race, would your answer change? Why?
sean s.
Sean, thanks for your comment. I don’t think it’s right to say that keeping the state out of it means that “the baker always wins.” For example, a person who feels aggrieved by a bigoted baker is well within her rights not to give that baker any more of her business and to encourage her friends and family to do the same. The baker may very well end up being the loser. Or, it may just be that the baker obtains a reputation as the “traditional values” baker and will get lots of business from people who like “traditional values” and little business from those who find “traditional values” bigoted. Classical liberals would say that it’s better to let issues like this play out in a decentralized, individually oriented way that lets people with different values express them in the market rather than involving the heavy hand of the state.
Racial discrimination is quite different. For several hundred years, the state enforced a racial caste system, first through slavery and then through state-sanctioned Jim Crow segregation. Even with the end of formal state-sanctioned caste, African Americans were effectively shut out of mainstream economic life by the lingering vestiges of state-sponsored racism. The 1964 Civil Rights Act was necessary to break the state-imposed caste system.
Although there has certainly been discrimination against gay people, I don’t think that gays are systematically shut of mainstream economic life. A blurb from a 2012 CNN Money article:
“[Gay] [r]espondents not only reported significantly higher annual incomes — $61,500 compared with the national median of $50,054 — but they also carried about $4,000 less in debt than the average American and had $6,000 more in household savings. They were even slightly more likely to have jobs in the first place, with an unemployment rate of 7% versus the national rate of 7.9%.”
Dan;
My objection to your solution is that it makes individual rights something that hostile majorities could limit, or even eliminate de facto if not de jure. Letting commercial matters play out in the market may be an acceptable solution, but this is not a commercial matter, it’s a human rights matter. Individual rights have no meaning if “the marketplace” can destroy them.
In your scenario, the baker will only “lose” if a substantial fraction of the population disagrees with the baker’s decision. If the buyer is a member of a tiny or disliked minority, the baker is almost certain to win.
If the buyer is a member of a majority or well-regarded minority, the buyer might usually “win”; but in that scenario, the buyer is unlikely to come into conflict with the baker anyway. It is precisely the rights of the tiny or disliked minority that especially need protection, and it is in their case that a “market solution” does not work well.
Your marketplace solution is appropriate only if we regard individuals rights as commodities; available only at a cost to the buyer, and limited by supply and demand. It seems a cavalier attitude toward them.
Even in commercial matters, the market sometimes does not respond to different values expressed by different people; companies with deep pockets can buy market dominance for inferior products or services. I would not want my rights subject to the vagaries of such an institution.
Your solution may fit the description of Classical Liberalism, but that does not make it appropriate. I dare say these Classical Liberals were economists first, and since that was their favorite discipline, they tried to force-fit everything else into it. When your favorite tool is a hammer, all problems seem like nails. But individual rights are not an economic item. Feel free to put yours on the market, but not mine nor third parties.
You mention that gay and lesbian persons are generally economically well set, were as blacks were and are economically disadvantaged. Again you treat individual rights as an economic asset. Gay and lesbian persons have escaped economic loss only because they could escape detection. Now they want to come out from the shadows. Their rights and their need for protection from discrimination are not qualified by economic status. Rights are supposed to be God-given, not bestowed by any marketplace.
sean s.
Sean,
It seems that we hold different first principles on the role of government, so we’ll have to respectfully disagree. But I’d just like to respond briefly to two points in your thoughtful comment.
First, I’m not sure why you think that liberal solutions make it more likely that hostile majorities will limit the rights of vulnerable minorities more than statist or collectivist political systems. Isn’t it just the opposite? In my view, minorities are most vulnerable when majorities deploy the coercive power of the state to impose their views of the good on minorities. A case in point referred to in my post was the Virginia statute declaring void private contracts by gay people. There are countless others.
Second, when I say that I prefer that contests over morality and sexual identity happen in the market than in the statehouse, I don’t mean to reduce everyone to economic commodities. By market, I simply mean the competition between ideas and values that happens outside of the coercive power of the state. That can include all kinds of non-economic persuasion, discussion, and social mobilization.
For example, according to press reports, after the Oregon lesbian couple was denied their wedding cake, they had offers of free cakes from around the country and ultimately accepted a free cake from Food Network celebrity chef Duff Goldman. Those offers had nothing to do with economics–they were making social statements of support for people and a cause.
Dan,
I take no position on statist or collectivist systems, my comments are on the solution you propose. Other “isms” don’t interest me; I am pragmatic; I support solutions that work and oppose “solutions” that don’t. Your “solution” is inferior.
It may be true that “minorities are most vulnerable when majorities deploy the coercive power of the state to impose their views of the good on minorities” but a close second is when majorities deny the State power to intervene on behalf of the minority, leaving them vulnerable to organized private abuse.
It does not take the State for majorities to impose their beliefs on minorities.
The Virginia statute you cite is an example of the majority imposing its views on the minority; we were talking about the State intervening to protect the minority; those are different things.
I realize what you mean by “market” but that process, intentionally or not, commoditizes whatever is competed for. Human rights should be protected from the coercive power of the State, but also from the coercive power of despotic majorities. The Framers were wise enough to see that, I don’t understand why you don’t see it.
The Oregon couple may have been lucky enough to make out well, but one should never confuse luck with normal; that is a fundamental error. 50 years ago, they would not have been so lucky. 50 years from now, who knows? You advocate leaving it to chance and the vagaries of popular opinion. I respectfully disagree. If we would not do that with race, why do that with sexual orientation?
sean s.
Sean, a small point, but the Framers did not, as you say, protect minorities from despotic majorities outside of the coercive power of the state. Neither the original Constitution nor the Bill of Rights contains any prohibition on purely private conduct. All of the “rights” protected are against the state. Thus, for example, if the government denies you the freedom of speech, the first amendment protects you, but if your employer denies you the freedom of speech, the first amendment does not. The state action requirement to invoke constitutional protections persists to this day. There is only one exception: The Thirteenth Amendment, prohibiting involuntary servitude, applies to both state action and private conduct. And, happily, I’m sure that you and I will agree on the legitimacy of that.
Dan,
Another small point, but all I said about the Framers was that “The Framers were wise enough to see” the problem of despotic majorities. The Bill of Rights was created in part to keep a despotic majority from using State coercion to impose its will on the rest of the population.
My point was only that you seem to be overlooking a problem the Framers commented on many times.
That the Framers did not enact any prohibitions against private discrimination does not mean those prohibitions are never warranted. Times change, needs change.
sean s.