If you want an easy life, follow this simple rule: don’t talk. If you must talk, only speak when you’re spoken to, and keep it brief. And never, ever, talk about sex, politics or religion.
If this seems like an unrealistic standard to live by, congratulations! You’re human. Conversation is the spice of life, and people are too interesting to be kept silent all the time. The experiences and wisdom they possess are far too valuable to miss. Oh, and the sex, politics and religion? Good luck avoiding those discussions in college.
So, I’ll jump right in. Bear with me, as it is hard to hide the giant elephant in the room, particularly when every fabric and fixture is an unmistakable blue. But in the attempt to kill three birds with one stone by tackling sex, politics and religion (all in one issue!), allow me to discuss what seems to have taken public discourse by storm in the months since the Obergefell v. Hodges decision: the debate between religious freedom and civil rights.
The question I will attempt to answer in this column is whether or not it is illegal for the owner of a private business to refuse to provide services for a same-sex wedding. This can refer to a photographer, a wedding planner, a cake decorator or anyone else who is approached by a same-sex couple and asked to provide a service for their wedding. I’ll use a cake decorator for my hypotheticals, but the legal understanding should apply to all.
This year, the Equal Employment Opportunity Commission concluded that Title VII of the 1964 Civil Rights Act forbids sexual orientation discrimination because it’s a form of “sex” discrimination, which is statutorily forbidden. Regardless of if you agree or disagree with that conclusion, let’s rest on the assumption that private discrimination on the basis of sexual orientation is disallowed across all 50 states.
As we see in the rulings affecting bakers such as Aaron and Melissa Klein and Jack Phillips, many members of the LGBT community see a refusal to bake a cake for a same-sex wedding as discrimination on the basis of sexual orientation. But is it?
Discrimination on the basis of sexual orientation is when you refuse to provide a service or otherwise accommodate a customer because of his or her sexual orientation. Nothing more, nothing less. Say, for example, a baker hung a sign in his window with the words “No Gays Allowed!” or refused to seat a gay couple solely because they openly identified as gay. This is discrimination on the basis of sexual orientation.
When a gay couple requests that a cake be made for their same-sex wedding, they are not refused service because they identify as gay. They are refused service because the baker is not comfortable providing a cake for a same-sex wedding, a practice which he or she feels violates her religious beliefs. If a straight individual came into her store making the same request, he or she would also be denied. It is not just LGBT individuals who are refused service when a request for a same-sex wedding cake is made: all individuals are refused service.
For me, it’s the same situation as if a same-sex couple requested a cake leaden with profanity for an eccentric friend’s birthday party. If the baker feels morally conflicted about creating a cake with offensive language, and declines to do so on the basis of his religious beliefs, is he discriminating on the basis of sexual orientation? Of course not. The sexual orientation of the customer is not what matters in any situation of a baker who is refusing to offer his or her services, but the subject of the cake at hand is.
Why is this an issue for some? Well, I personally consider everything I create to be a representation of myself and my standards. This seems to be a common sentiment among chefs and bakers alike, and I do not believe a baker should be forced to create a cake that he is troubled by. I can certainly understand why a baker would not want to create a cake for an event he does not approve of. For example, no one is forced to cater to the Republican National Convention if he or she does not want to. I think the same freedom of association should apply to everyone.
I think the underlying issue here is the confusion between discriminating against classifications of people and discriminating against ideas. The former is generally illegal, while the latter is not. Freedom of conscience, I believe, is protected by the Constitution as is freedom of religion, and the Supreme Court recognized this in Boy Scouts of America v. Dale. I am not required to support same-sex marriage if I do not wish to, even if it is a constitutional right, similar to how no one is forced to lend support to abortion or gun rights, despite both being constitutionally protected. It is not against the law to oppose same-sex marriage, nor will it ever be.
As we see in the landmark Burwell v. Hobby Lobby decision, it is constitutional for owners of private businesses to object to providing a service on the basis of a religious belief. Religious objections are legitimate in the eyes of the law, and we should respect this going forward.
I personally struggle with the idea of government coercion, which I feel is more applicable to totalitarian or fascist governments than a republic built on freedom and individual liberty. If you find a refusal to perform a service for a same-sex wedding immoral, that’s fine, but immoral doesn’t always mean illegal.
Until next time, elephant out.
Paul Popa is a Trinity junior. His column runs on alternate Tuesdays.
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