I’ve spent some time thinking about whether or not I wanted to throw myself into one particular briar patch, but in the end that long bit of thinking that did convince me. The briar patch in question? The “Masterpiece Cake Shop” case before the Supreme Court.
This post is, by the way, going to be a long one…and far drier, not to mention less snarky, than I usually shoot for.
Now, first off, a few pieces of backstory and exposition:
A) I live in Colorado, and have for fifteen years. This case received a great deal of local coverage here, so it is not something new to me. Hell, there are details and specifics to it that seldom, if ever, get mentioned by the national media. Most of that coverage, in fact, is pretty damned shallow and simplistic…not to mention designed to reinforce whatever preconceived conclusions a particular reporter/outfit is carrying into the fray.
B) I’m a straight, white guy, with all of the life experience that entails. It also means I don’t really have a personal dog in the fight…just a socio-cultural one.
C) I am also, as I’ve mentioned before, pretty damned libertarian. Now, part of that is my own Golden Rule of “leave me alone and I’ll leave you alone”, but another part is a belief — within limits — in the philosophy of “that government is best which governs least”.
I am not, but the way, going to list here the specifics here of the case itself. Anyone interested already knows, and anyone not interested has probably stopped reading by now…
No, what I want to get to is my take on the whole thing…and that take is: it’s complicated.
Really, the whole thing is fucking complicated…far more so than the “easy answers” on both sides like to pretend. There is right and wrong aplenty in this case, and in the situation that gave rise to it. And the outcomes? Yeah, that gets even more complicated…and even more “right and wrong”.
My thinking on this whole thing has also evolved over time. Several years ago, when it first arose as a simple story in the Denver Post, I was one of those “easy answer” folks. I thought I knew the whole story, so I made my “decision” and ignored everything else about the issue.
But the case got bigger, and I learned more facts.
And I thought more.
You know what? That changed things for me…and changed my opinion.
This case really is bigger than a simple dispute between a baker and his (potential) customers. There is more than enough legitimate fear — and threat — on both sides to warrant a case before the Supreme Court.
By the way, it is NOT a case about the legality of the baker’s refusal: his actions were in clear violation of state law. What it IS a case about is whether or not that particular law is constitutional.
In one sense, it is also a case about compelled speech: the plaintiffs argue that the baker has a legal duty to fulfill their order, regardless of his personal beliefs and convictions. The defense, on the other hand, contends that such compulsion uses the power of the State to force a man to violate his conscience, and his deeply held beliefs.
From that particular (limited) perspective, it is pretty easy to pick a winner…and this is where my initial opinion on the whole thing started years ago.
But it ain’t that easy.
When I write freelance, I get to pick and choose my clients as well as the work I create. I don’t write for Penthouse Forum, nor for the Aryan Nation, nor the Socialist Worker…not, in fact, for anything or anyone that I find repugnant and antithetical to my own beliefs and views.*
*So says the guy whose current protagonist is an alcoholic thief…and whose other main character is a teen-aged, gay prostitute. I think we can safely say that puritanical morality ain’t exactly my thing…
What about my photography? Should I have to accept a client that wants me to shoot porn? Or BDSM? Or cats? Shouldn’t someone else, I’ve asked myself, have the same freedom as I do? Especially another artist?
Again, that was where my thinking started…and where my opinion stood for a long time.
But it still ain’t that easy.
First of all, I don’t have a store. I don’t operate any form of public, physical location where I am open and available for folks to simply walk in and hire me. Not even a link on the web. I initiate any and all work I perform, either by working purely on spec, or by prior personal agreement with a client to whom I have been referred (or has been referred to me).
Having a store changes things. It’s called “public accommodation”, and it does in fact come with obligations and requirements. One of those is that you have to accept your customers as they are…you cannot pick and choose based on who you want them to be.
Let me use a case from a few years ago to illustrate: a group of friends went out drinking, then stopped at a liquor store so they could continue the party at home. No problem, so far — they were all of legal age, and were well within their rights. The cab driver they hailed, however, did not approve of alcohol. More than that, he was devout in his religion and was opposed to alcohol in all forms. He refused to allow the group into the cab that he owned…and was fined heavily by the regulatory agency because of the incident.
Was he within his rights to refuse service? Again, the customers broke no law…they were simply “immoral” according to the driver’s beliefs.
Although he did appeal, there was no outcry, and certainly no Supreme Court case…
The two cases are not so far apart. There are differences, yes: the driver was neither “speaking”, nor artistically creating…but he was offering a service to the public. In the case of the cake maker, he also was offering a service to the public: his talents as a baker and designer.
Could he — can he — selectively withhold his publicly available services simply because he finds a potential client to be immoral? Not illegal, mind you, just immoral according to his religion.
If he can withhold his services, why could not the cab driver? Does it change things if you learn the cabbie was a devout Muslim, rather than a fundamentalist Christian (as was the baker)? Can one’s beliefs and views on morality be held more, or less, acceptable simply because of the religion one chooses to follow?
Again, remember the concept of “public accommodation”: when you offer your services openly to the public, you do surrender some freedom. But does that apply to your freedom of conscience? What if matters of conscience differ, as they often do? Whose is of more value?
Is your right to avoid alcohol more important than my right to stumble drunkenly into your cab?
Is one man’s right to reject homosexuality more important than another man’s right (in this case, a couple’s right) to avail himself of a public service?
The simple fact of the matter is, as I’ve said before, your morality is none of my business…and mine is none of yours. When the question is one simply of morality, you have no right to decide for someone else. In our private lives that is easy an thing to decide: I can’t tell you to go get drunk, and you can’t tell me to stop with the one-night stands. Live and let live.
Even in business, that “easiness” can apply: if you are a private entity who offers services solely on a private basis — a consultant, say, or a writer — you can pick and choose your clients and partners based on whatever criteria floats your boat. Even on the basis of morality…or beer preference…or hair style…
But, if you choose to publicly offer your skills and services as a business, it is no longer a question of private, personal choice. Yes, that means you do surrender some of your freedom. You made the choice to do so when you decided to open a public business — that partial-surrender of freedom came in exchange for the privilege of operating an open, established business.
That does not mean you surrender your private, personal freedom of conscience. That personal freedom is pretty damned simple: if you don’t approve of homosexuals, don’t befriend or become one. If you don’t approve of alcohol, don’t drink or allow others to drink in your home. If you don’t like (evil, evil) cats, don’t get one. You can, quite simply, be just as committed and devout in your personal life as you ever were.
But your private morality has no place in your public business. You cannot pick and choose your public clients based on private beliefs and morality.
And now even I can come up with all the questions and unintended consequences and what about-isms…
But what about a graphic artist asked to make a flyer for a neo-nazi rally?
But what about a liberal architect asked to design the Trump Presidential Library?
But what about a conservative sculptor asked to make a bust of Hillary Clinton?
But what about…
Like I said, it’s complicated.
I’m really really glad I’m not a Supreme Court justice.