Bakeries are the new civil rights battlegrounds, and not just in the
United States - New York Times
18-12-16
The passage of
same-sex marriage (SSM) into law has opened up a Pandora’s Box of competing
rights.
A
question of massive legal moment (so it would seem): can a baker be forced to
make this cake if what it depicts is contrary to his religious beliefs?
High-profile cases
in the US and the UK have involved independent business operators – bakers,
photographers, florists – who have found themselves in hot water for refusing
to provide their services to same-sex couples because of a conflict with their
religious beliefs. The issue is shaping up to be a big one in Australia, and
could flare up in NZ at any time.
Should bakers have
the right to turn down jobs involving the making of wedding cakes for two men
or two women should that union be contrary to their religious convictions
regarding marriage? Ditto for photographers and florists in connection with the
services they offer.
According to
anti-discrimination legislation, the answer is ‘no’. A provider of a public
service, such as baking wedding cakes or making wedding snaps, may not
discriminate against people on the basis of sexual orientation. But this runs
counter to the potent argument that those people should not be forced into
actions that contravene their right to practise their religion. And so the
suggestion is that they should be placed in an ‘exempted’ category with regard
to anti-discrimination law as it pertains to same-sex couples.
Let’s stick to
bakers. Yes, I do believe that bakers who identify as traditionalist Christians
should have the right to say ‘no’ to a couple of blokes approaching them about
baking a cake for their wedding. But no, I do not believe that this right
should be based on an exemption on religious grounds as that will likely result
in discrimination against non-religious people.
Decisions,
decisions…
Take two bakers,
one a member of a fundamentalist church and the other a leading light in the
atheists’ association; both harbour profound conscientious objections to SSM for
their very own reasons. If you create a ‘religious exemption’ category, you
will let the first off the anti-discrimination hook but not the second. And
that ain’t fair. It amounts to creating a new subcategory of ‘religious
discrimination’ – being discriminated against on the basis of a person’s objections
to SSM not being on religious grounds.
It is not only
religious types who have objections to SSM, and a secular legal system has
absolutely no legitimate basis for acknowledging the objections of religious
believers to SSM while dismissing those of non-believers. Far better to have exemption
on the basis of conscientious objection whatever the rationale underlying that stance,
surely.
How would this
work in practice? Would the business operator in question have to sign some
sort of declaration to qualify for
exemption? Would s/he have to explain him/herself to some tribunal? Or would it
be sufficient to simply tell the enquirer, “Sorry, I am a conscientious
objector to gay marriage”?
This is assuming,
of course, that the baker tells the potential customer why s/he is declining
the job. But need s/he do so?
I think a possible
way out of this pickle is to invoke contract law. Consider this scenario: I am
the proprietor of a bakery that makes cakes to order as well as offering
customers ready-made off-the-shelf products. Someone comes into my bakery and
proposes to me that I should make a cake to certain specifications – that
person is presenting me with a proposal for a contract. Under contract law, I
don’t have to accept that proposal, and more importantly, I don’t have to give
reasons why I decline should I do so. (Indeed,
I’d be well advised to keep my trap shut if opening it would render me liable
to action under anti-discrimination law!)
I think the
broader issue here is the right of an independent business operator who offers
customised services to the public to determine whom s/he will accept proposals
from. Just because I make cakes to order doesn’t mean that I am obliged to make
any cake that someone walking into my
bakery off the street wants me to. The same is already the situation for
builders and garage proprietors – they don’t have to accept any old job that
someone waltzing into their business premises wants done.
Jack
Phillips, the baker at the centre of the wrangle between the
anti-discrimination and religious freedom camps in the US. I support his right
to not make that wedding cake for that same-sex couple not because he is a
traditionalist Christian but because he is an independent businessman who
should be able to choose from whom he wishes to accept proposals of a contractual
nature for whatever reason – reasons he should not have to divulge.
To avail
themselves of this dodge – and I fully admit to its being just that – bakers
and the like who object to SSM on religious grounds will have to resist the
temptation to proselytise when faced with potential clients whom they do not
wish to serve because they are a gay couple. It could be argued that this is
imposing on their right of freedom of expression, or that they are again being
denied the right to practise their religion, which explicitly includes
‘spreading the good word’. But this is a lesser evil than forcing them to make
that cake which represents a union to which they are opposed at the most
fundamental moral level. They will just have to learn to button their lips.
Conservative Christians
in the West are making a hullabaloo about becoming the new victims of systemic
discrimination and persecution. I have some sympathy with that grievance,
although I do wish they would recognise the fact that they are not the only
ones being targeted by the PC-fascists; as noted earlier, it is not only
traditionalist Christians who object to SSM. What mortally offends them is, of
course, the realisation that we in the West have been moving into the
post-Christian era. Christianity no longer rules the moral roost, and nobody
likes losing power. But unless it’s martyrdom they’re chasing, they will have
to adapt and that includes exercising a measure of self-restraint over their
utterances in delicate situations where their moral norms no longer coincide
with the law’s.
No, don’t – just don’t give
them any reason to get the PC-heavies onto you
The strategy I am
advocating applies only to owner-operators. I would not defend the right of an
employee to refuse to handle that cake where the proprietor of the bakery has
taken the job on any more than I would defend the right of a clerk in a
registry office to refuse to marry same-sex couples. Both employees signed up
to do a job and if their consciences won’t allow them to perform certain
aspects of those jobs, the decent thing for them to do is resign (see my
article “Employees who won’t do their jobs for whatever reason”, Breaking Views 5 September 2015 HERE).
If I as an
independent business operator offering a customised service to the public don’t
want to accept your proposal for a contractual arrangement between us for
whatever reason, all I have to do is say ‘no’ – I do not owe you or anybody
else an explanation. As long as I am civil and don’t get personal about it,
there should be absolutely no grounds for invoking anti-discrimination law.
That’s not quite
how it works, but it is how it jolly well should
work. May liberty and pragmatism rule, and may both religion and Big Sister
butt out.
Barend
Vlaardingerbroek BA, BSc, BEdSt, PGDipLaws, MAppSc, PhD is associate professor
of education at the American University of Beirut and is a regular commentator
on social and political issues. Feedback welcome at bv00@aub.edu.lb
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