A solution to the “gay wedding cake” dilemma

A baker can refuse explicit expression of a certain viewpoint but not alleged implicit expression of a viewpoint.

KODAK Digital Still Camera
© Dave DuBay

The so-called “gay wedding cake” lawsuit raises some interesting questions.

  • If a baker can refuse to bake a wedding cake for a gay couple then can a baker refuse to bake a cake for an interracial couple if the baker’s religion says miscegenation is wrong?

It would be hard to support a baker’s religious rights in one case but not the other. But a widespread religious exemption—especially if it applies to corporations as well—would rip a huge hole in the Civil Rights Act of 1964.

On the other hand,

  • If a baker cannot refuse to bake a wedding cake for a gay couple then must a baker also bake a cake for an anti-gay evangelical?

Again, consistency would seem to imply that discrimination against evangelicals is also wrong.

In the end I think this calls for a legislative solution. Courts can interpret the law or strike down unconstitutional legislation, but creating new laws is tricky. Federal civil rights legislation does not include sexual orientation or gender identity, so it would be plausible for a Supreme Court justice to say they personally support civil rights for LGBTQ individuals while also saying that the baker isn’t violating federal law. Of course, the state of Colorado does have a civil rights law covering sexual orientation, so adding a large exemption to state law in favor of the baker would be judicial activism—which conservatives claim to oppose.

I’ve previously written in favor of adding sexual orientation and gender identity to federal civil rights legislation. But the issue of compelled speech can’t be ignored. For the government to force you to say something you disagree with does violate your free speech rights, and in some cases your religious freedom.

Here’s the distinction I draw: In most circumstances baking a cake as a business endeavor does not involve the baker’s personal expression. A wedding cake used in a same-sex wedding is usually indistinguishable from a wedding cake for a heterosexual wedding (except for the bride-and-bride or bride-and-groom on top of the cake, which the baker doesn’t usually manufacture anyway).

However, baking a cake that includes a meaningful symbol or words that convey a particular viewpoint could violate the baker’s religious or freedom of expression rights. If the same-sex couple requests the equality symbol on the cake then I think the baker should be permitted to refuse inclusion of the symbol. But the baker cannot refuse to provide a generic wedding cake. Likewise, a baker could not refuse to bake a generic cake for an anti-gay preacher, but a baker could refuse to put Romans 1:26-27 on it.

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What’s a right? What’s not?

Rights are about not taking things away from you.

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Carefree, Arizona. © Dave DuBay

Philosophical basis for rights

The Declaration of Independence gives us a general theory of rights, and the Constitution provides specifics. Liberty is inherent to the individual. So rights are about things that belong to you, such as your views, your chosen path, and your life.

It’s about knowing what’s your and what’s not yours. Your rights don’t belong to those in authority, so protecting your rights means prohibiting the government from doing certain things.

The Bill of Rights stops the government from telling you that you can’t say certain things, that you can’t worship a certain god, or that you can’t own a gun. And the government can’t declare you guilty of a crime unless guilt has been established through due process. The ninth amendment says that your rights are not limited to the ones specifically mentioned in the Constitution. And the fourteenth amendment clarifies that the law protects everyone equally.

Civil Rights

In other words, rights are about not taking things away from you. This goes for civil rights too. The Civil Rights Act of 1964 says equal protection under the law means businesses can’t deprive you of equal access to public accommodations because of race, sex, etc.

It’s important to note that the Civil Rights Act doesn’t require businesses to give anyone a job. Instead, civil rights means that if a business chooses to create a job then they must respect each applicant’s equality under the law.

Rights vs entitlements

But saying the government must give you something (or mandate that someone else must give you something) is different from saying you can’t be prohibited from doing something. Just because something is an entitlement rather than a right, though, doesn’t mean the government shouldn’t do it. But it does mean that unlike rights, the government doesn’t have to do it.

By entitlement I mean a government benefit, not someone who wants special treatment. Health insurance is a good example. Healthcare is an entitlement, not a right, because healthcare is about what someone gives you.

The government mandating that private companies must provide an insurance product is problematic, though. If the government decides that everyone should have health insurance as an entitlement then it would be more straightforward if the government provided it directly—by giving everyone Medicare, for example.

Other cases

Because health insurance is not a right, the government can’t prohibit business owners like Hobby Lobby from refusing to provide insurance coverage for birth control, which violates their religious beliefs. It would be different if Hobby Lobby chose to provide insurance that included birth control for some employees. Then equal protection would create a case for giving every employee equal access. But if Hobby Lobby chooses not to provide coverage for birth control to anyone then the government can’t force them to do it.

Same sex marriage, on the other hand, is a right. The government can’t stop you from marrying the person you choose. And equal protection under the law reinforces that.

But what about gay wedding cakes? This is a civil rights issue. It’s the baker’s choice to offer services to the general public—the government isn’t mandating that the baker start a business. Refusing to comply with equal access under the law is no different from a restaurant refusing to seat an African-American customer.

How the GOP Shot Itself In the Foot

The Republican Party is being hijacked by a bigoted demagogue because the Republican establishment fell asleep at the wheel.

Let’s take a trip back in time when Democrats were more racist than Republicans. Though Barry Goldwater and five other Republican senators voted against the Civil Rights Act of 1964, 21 Democratic senators voted against civil rights.

Goldwater didn’t think government had the right to tell businesses what to do. And though Goldwater opposed the Ku Klux Klan, a lightbulb went off in the KKK’s head. White racists realized that arguments about limited government and states rights generated more public support than explicitly racist arguments did.

The South had been solidly Democratic since the Civil War because it was the Republican Party that defeated the Confederacy, abolished slavery, and were early champions of civil rights legislation. Back then, Republicans were more popular in the North. Still, Democratic President Lyndon B. Johnson got the Civil Rights Act of 1964 and the Voting Rights Act of 1965 passed despite immense opposition from Southern Democrats.

Johnson remarked that the Democratic Party had lost the South. And in the 1968 presidential campaign this was too good of an opportunity for Republican candidate Richard Nixon to pass up. Today, thanks to Nixon’s Southern strategy, Southern whites are predominantly Republican.

But the Republican establishment seemed to think it could get the votes of right wing extremists down South without ceding control of the GOP to them. Meanwhile, Republicans like Rush Limbaugh, Bill O’Reilly, and others used the airwaves to spread an extreme right wing message to workers throughout the country who were devastated over the replacement of good paying manufacturing jobs with low paying service and retails jobs.

The Southern strategy also meant courting evangelical Christians. In 1994 Goldwater supposedly said, “Mark my word, if and when these preachers get control of the [Republican] party, and they’re sure trying to do so, it’s going to be a terrible damn problem. Frankly, these people frighten me.”

Soon the racism that had been directed at African-Americans became generalized xenophobia reminiscent of the nativist “Know Nothing” party of the 19th century. Today, Muslims, Mexicans, and women are also major targets.

Donald Trump’s populist presidential campaign is the culmination of this, and it shows that the Republican establishment has lost control of the party. Ronald Reagan belonged to the Republican establishment, though he courted the extreme right. George W. Bush was born into the Republican establishment, but he felt more at home among right wing populists. That is, Bush had a foot in both worlds. But the last two Republican candidates for president (John McCain and Mitt Romney) were establishment Republicans, and both lost badly.

The Republican establishment has run out of steam, but right wing populists are energized.

Still, Trump has received only 37% of Republican primary votes – a plurality, not a majority. In the general election against Hillary Clinton, Trump is anticipated to lose by a similar margin.

Also notable is that Trump’s support is highest among older voters. He has very few supporters under 30. I’ve written before about the Republican Party’s aging and therefore shrinking voter base. It’ll take another 20 or 30 years before today’s 20-somethings are in their voting prime and the older, more conservative voting block is no longer politically significant. Between now and then we can expect more disarray from the GOP as it faces an identity crisis in a changing world.

 

Refusing Service: The Latest Is a Barbershop

We all know about county clerks refusing to issue marriages licenses to gay and lesbian couples. And bakers and photographers refusing to provide their services at same sex weddings.

The latest is a barber refusing to cut a woman’s hair. But unlike discrimination against lesbians and gay men, the Civil Rights Act of 1964 makes gender discrimination unambiguous: he broke the law and it cost him $750.

Barbiere is a “gentleman’s barber shop.” Which is fine. Some of my fondest childhood memories are of going to the barbershop with my father or grandfather. In kindergarten, all the other boys wanted to be a policeman, a fireman, or an astronaut. I said I wanted to be a barber when I grew up. The teacher thought that was awesome.

At a barbershop, you just walk in. No appointment. Yes, there’s often a wait. But the point is men shootin’ the shit with other men. Which is nothing against women. The conversations usually revolve around sports, the news, cars, hunting, fishing, work, and gossip. Guy stuff (except for the gossip).

In college I used to go to Joe’s Barber Shop. It’s nice to walk into a place, say “Hi, Joe,” and hear, “How are you, son?” (He wasn’t my father, it’s just a manner of speaking.)

At a barbershop, instructions vary from nothing (regular customer, same haircut for the past 20 years) to, “Off the ears,” or “A little off the top,” to something more specific such as “Flatop” or “Buzz cut.” Greater detail is typically unnecessary.

You can also get a shave with a straight razor, but that’s rare. My dad told me that once in the Philippines (he was in the Navy at the time) he got a shave from a barber with a straight razor. My dad said, “He didn’t nick me even once, and did such a great job that I didn’t have to shave again for two fuckin’ days.”

My mother told me that once in the late ’60s she was in a hurry and went to a barbershop because she didn’t have time to make an appointment with the beautician. And she regretted it. Apparently, the haircut she got caused some confusion about her sexual orientation.

Who knows why a woman sought a haircut at Barbiere. Maybe she likes short dos, and cosmetologists just can’t do it right. Maybe she likes talking football while waiting for her turn in the chair. Perhaps she wanted to smash the patriarchy and thought haircuts was a good place to start.

But let’s look at this rationally. Discrimination is wrong. Besides, it’s not often that a woman will walk into a barbershop, so statistically speaking a man can expect an all male environment almost always. And some women get along better with men than they do with other women. Maybe she doesn’t mind androcentric conversation. Maybe she can talk cars and football with the best of them, and tell a few dirty jokes to boot.

But if she’s can’t deal with mantalk, guaranteed she won’t be a repeat customer.