“SweetCakes by Melissa,” an Oregon cake bakery, is in the news after refusing to sell a wedding cake to a lesbian couple. The couple made a complaint to the state attorney general’s office, which is now investigating.
So is refusing to bake a cake for a lesbian wedding illegal? Maybe so. According to Oregon Law,
…all persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older.
So what is a “place of public accommodation,” you ask? I gotcha covered:
(1) A place of public accommodation, subject to the exclusion in subsection (2) of this section, means any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements or otherwise.
(2) However, a place of public accommodation does not include any institution, bona fide club or place of accommodation which is in its nature distinctly private.
You can read a fuller account of what happened at The Oregonian‘s website. Everyone agrees that a customer was turned away by Aaron Klein, the co-owner of SweetCakes, because she requested a cake for her same-sex wedding. The customer claims that Aaron used insulting language like “abomination” when turning her down; Aaron denies that.
According to the Oregonian, “the attorney general’s office is waiting for Sweet Cakes’ official account of the encounter before taking action. If the agency finds cause, it has the option of filing a discrimination complaint with the state Bureau of Labor and Industries.”
According to right-wing Christian blogger Denny Burk:
Klein contends that the first amendment guarantees his right to practice his religion without interference from the government. In short, he believes that he shouldn’t have to violate his conscience by providing his services to a same-sex wedding. He claims that his Constitutional right to freedom of religion trumps Oregon state law.
1) My knee-jerk reaction is a Libertarian one: If the Kleins want to refuse to sell cakes to same-sex couples, then they should have that right. There are many other bakers in the Portland/Gresham area who will happily take the business the Kleins are refusing.
2) My next thought is “where does it end”? If the Kleins can refuse to sell to a lesbian couple’s wedding based on his religious beliefs, then couldn’t another cake-maker refuse to sell to any lesbian, gay or trans person based on that cake-maker’s religious beliefs? And if cake-makers can do that, why not restaurants and hotels? And what about a shop owner who thinks God doesn’t approve of Jewish weddings, or interracial weddings, or Asians – does that merchant get an out from anti-discrimination laws, too?
What about a teacher who says that her religious beliefs don’t allow her to teach the kids of same-sex couples – should she be given an out? SSM opponents often argue that public employees like city clerks should be allowed to refuse to serve same-sex couples; if clerks can do that, why not teachers? It’s surely much harder to break your religious convictions to deal with a student for a full school year, than it is to take two minutes to put a stamp on a form.
In short, if everyone is allowed to ignore state anti-discrimination law based on their claimed personal religious beliefs, then it seems to me that anti-discrimination laws must logically be void and unenforceable.
There are, of course, some people who are opposed to all anti-discrimination laws. My suspicion, however, is that most people who think that the Kleins should be allowed to ignore discrimination law based on their religious convictions, aren’t arguing that religion should be a general “get out of anti-discrimination law free” card. Rather, they want lgbt people singled out for lesser legal protections. Very few of those who think that religious business owners should have free reign to discriminate against lesbian and gay customers think the same when you ask them about the right to discriminate against Black people or against Jews.
3) This case, and others like it, actually has nothing to do with the same-sex marriage controversy.
It’s important to recognize that the issue being argued over, when we argue about same-sex marriage, is not “do same-sex couples have the right to hold weddings and call themselves married?” No one in mainstream America, not even in the GOP, not even Brian Brown, argues against the right of two women or men to dress up in formal wear, rent a hall, and make formal vows in front of their loved ones. Lesbians and gays have the right to get married, and have been getting married for decades, long before anti-SSM activists were aware of the practice.
The actual legal controversy is, will the state recognize same-sex marriages? And that controversy is not at all relevant to what’s currently happening with SweetCakes.
In fact, legal recognition of same-sex marriages was constitutionally banned in Oregon.
Although anti-SSM activists claim events like these are the result of same-sex marriage laws, banning legal same-sex marriage doesn’t actually prevent these legal conflicts, as SweetCakes demonstrates. That’s because the relevant law here is not marriage law, but anti-discrimination law.
That’s what’s at issue here. Not the “right” for Christians like the Kleins to prevent same-sex couples from legally recognized marriages, or the “right” to prevent a gay widow or widower from benefiting from their spouse’s Social Security, or the “right” to prevent children of same-sex couples from having the benefits of married parents, or the “right” to keep international couples apart, or the “right” to prevent same-sex couples from access to the hundreds of legal rights that the Kleins have access to.
The Kleins have already won all those “rights” in Oregon, much joy may it bring them. What they want is the right to discriminate against lesbian and gay customers.
And maybe they should have that right. I’m sympathetic to the idea that small businesses – businesses that are run by the owner or owners, that have fewer than five employees – should be exempt from being seen as “public accommodations” for the purpose of anti-discrimination laws. I’m especially open to this argument in the case of people whose work is expressive, such as photographers and cake-makers.
This is a true case of “goods in conflict” – the right of discriminated against groups to be fully equal members of society everywhere in the public square, versus the right of mom-and-pop businesses to choose who to do business with.
I know some readers will disagree with me strongly. The choice to discriminate against lesbian and gay customers is harmful, and irrational, and should not be tolerated, some will say, and I have great sympathy for that view. I agree that what SweetCakes did is harmful and irrational. In the case of larger businesses, it shouldn’t be legally tolerated – corporations are too large a chunk of society to be allowed to pick and choose which Americans they’re willing to treat as equals. (If we allowed McDonalds to refuse to serve Jews, for instance, that would be too great an injury to the ability of Jews to be thought of as equal citizens.) Nor should it be tolerated in businesses that provide potentially life-saving services, such as doctors, or innkeepers.
But in the case of mom-and-pop bakeries, I think we should err on the side of legal tolerance.
I don’t for a second doubt that some lgbt people find being refused service genuinely horrible and traumatic. (The effects of small bigotries are cumulative. What feels like a polite refusal of service to Klein, may feel like the 1000th attack on a lifelong weeping wound to the customer he’s refusing.)
However, this is the sort of harm that should be addressed by reforming society, not by force of law. We cannot legislate away small harms and prejudices; we can only beat them through gradual persuasion. And gradual persuasion will only be impeded by the use of government force on tiny businesses like SweetCakes.
And yet… now that I’ve written that, I wonder about someone living in a small town. What if half the mom-and-pop businesses in a small town – a town in which virtually all the businesses are mom-and-pop stores – decided not to serve the one Muslim family in town? If we say they’re legally allowed to do that, what we’re saying is that if all the little businesses in a town agree, they can informally collude to ostracize any despised minority, turning them into second-class citizens. Why should they be allowed to do that?
It’s not as if anti-discrimination law is handed down by some unaccountable dictator. It comes from democratically elected representatives – and in Oregon’s case, it reflects the fact that most Oregonians want to live in a society with formal equality. A society in which any lesbian or gay man can walk into any store and be assured treatment that’s just as good as the treatment heterosexuals get.
And just like that, I’ve convinced myself to change my mind. I really am torn on this issue.