Barend Vlaardingerbroek: The right of independent business operators to do business with whom they will

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