Indiana and Shades of Gray

Most of the time when politics and morality combine, it doesn’t take me too long to decide where I stand on the issue; however, sometimes an issue arises where two important values seemingly collide.   The controversy over the Indiana Religious Freedom law is in one of these grey areas.  Basically, the law was in reaction to the uproar caused when a bakery, citing religious values, refused to make a cake for a gay wedding.  The law led to a furor of opposition and a boycott of Indiana saying that it legalized discrimination of gays.  This resulted in a counter-furor from those saying the law did not discriminate and is being unfairly maligned and it just protects the rights of people to exercise their conscience.

It is not my intent here to debate the Indiana law itself.  I am not a lawyer and I make no claim either way on the merits of the law.  What intrigues me is the underlying issue.  Should government require the bakery to make the cake for the gay wedding?

Let me preface this by saying that I personally support gay marriage.  I have stated repeatedly on this blog that I believe that adults should be able to engage in any voluntary interaction, whether that be business or personal, without government interference.  Gay marriage certainly fits this criteria.

The grey area results from the apparent conflict in two values I hold deeply:

  • I believe that discrimination is reprehensible.
  • I believe that people should be free to live their lives as they see fit unless their free choices interfere with the rights of other people to live their lives as they see fit.

In the simplest case, there can be a conflict if, for example, a person says that it should be his freedom to not serve gays, or blacks, or Jews, or people with red hair in his bakery.   I don’t want to take the time to argue this out here (perhaps in a future post), but to keep it short, I feel that the value against discrimination is stronger than the value for personal freedom.   Why then is my gut instinct to say that while the bakery should be required to serve gays who show up to buy a cake, the baker should not be required to make a cake for a gay wedding.  Why is there a difference?  They both appear to be discrimination.

First, I want to say more about what this issue is not about.  In many discussions of discrimination, one can  argue if there really is discrimination.  If a police department does not hire many black policemen, is it discrimination against blacks or is it because there aren’t enough qualified black candidates?  In this case the baker clearly stated that the reason was because he did not want to cater the wedding because it was gay.  This is clearly intentional discrimination.  Second, in many instances of discrimination there is a question of public vs. private.  It can be legally acceptable to say you will not invite a minority to join a private club, but you can’t refuse the minority entrance to your business.  In this case, it is a business and clearly it is public and not private.

So this brings me back to my gut instinct.  My first thoughts were that I cannot morally justify this instinct.  Refusing to cater a gay wedding isn’t substantially different than refusing to sell a gay person a cake.  There are a couple of techniques I use when I am trying to battle a moral gray issue.  The first technique is that if I am not the aggrieved party, I try to come up with a comparable situation where I would be the aggrieved party and then see if my reaction would be the same.  I am not gay but I am Jewish.  If my son was having a Bar Mitzvah and the baker told me he refused to cater Bar Mitzvahs, how would I feel then.  I believe I would be angry, but I would certainly not hire a lawyer and try to force the baker to cater the Bar Mitzvah.  I would not be happy, and I would probably tell everybody I knew to never go to that baker, but I wouldn’t think there should be a law forcing the baker to do the catering.

My other technique is to reverse the situation and see if it changes the way I feel.   If the baker strongly supported gay marriage and was asked to cater a convention dedicated to banning gay marriage, should the baker be forced to cater the convention?  Should a strong Democrat be forced to cater a Republican event?  Should anybody be forced to cater a Ku Klux Klan rally?  Reversing the situation didn’t change my views on this issue.  It actually made them much stronger.  So I decided I was right in my views.  I just still had no understanding of why I was right.  What is the moral distinction between saying that the baker must serve gays and not saying the baker must cater a gay wedding?

I finally found what I believe is the answer.  Before stating it, I think it is important to broaden the issue.  First, while the Indiana law cites religious concerns, I think that religion is much too restrictive in discussing this issue.  I would like to say that the issue involves someone who has any type of moral concern, whether it stems from religion or a deeply held conviction that is not based on religion.   The opposition of an atheist to catering the Ku Klux Klan should bear no less weight than the opposition of a Catholic for example.  Second, my opinion on the actual issues should not matter.  The rights of a Democrat to refuse to cater a Republican event or a Republican to cater a Democrat event should be the same.  Finally, of course, we are talking about much more than serving customers or catering.  The issue refers to any form of public interaction.  For example, should a politician be required to speak at a pro-choice or a pro-life organization?

I finally decided that the difference is that if the baker refused to serve gays, he is refusing to serve people based upon who they are.  When he refused to cater a gay wedding, he refused to support the statement they were making.   A wedding makes the statement that two people love each other.  A gay wedding makes the statement that two people of the same gender love each other and that this is good.  Refusing to support a statement is exercising first amendment rights for free speech.  Refusing to serve a person just because of who they are is not free speech.  It is just discrimination.

When I have a Bar Mitzvah for my son, I am making a statement that I think that the Jewish heritage is good.  When someone holds a political event, the event is clearly making a statement.  In every instance where I felt that the government should not force the business to serve the customer, the event was making a statement.   In the instances where I felt the  business should be forced, there was no statement.  While it can be argued that, for example in the famous civil rights lunch counter protests, the blacks who showed up at a Woolworth’s lunch counter in North Carolina were certainly making a statement, the general behavior of people showing up at a lunch counter is not a statement.  They are just hungry.  Once again, it shouldn’t make a difference on which side of an issue I lean to in determining if the person should be forced to do something he or she does not morally agree with.  The operative philosophy can be paraphrased by the famous quote,  “I disapprove of what you say, but I will defend to the death your right to say it.”

One argument against what I just stated could be that by participating in an event that makes a statement, you are not inherently supporting that statement.  For those who make this argument, I would like to refer them to the recent event where the Republican House Majority whip Steve Scalise was castigated for speaking to a white supremacist organization and he finally apologized for it.  People may associate you, rightly or wrongly, with any statement made by any event you participate in.  By participating, you may not be actively supporting the statement, but you certainly aren’t opposing it enough to refuse to participate.  Even if others don’t think that, you might think that yourself.  That should be enough.  Therefore I believe that forcing a person to support a statement is a violation of the person’s right to free speech.

One might also argue refusing to cater the event is not speech, it is actually non-speech.  Clearly though non speech is a form of political speech.  Frequently in history tyrants have required subjects to say loyalty oaths.  Failure to say the oath could result in execution, torture, or imprisonment.  Certainly the tyrants thought that non-speech was a form of political speech.  So should we.

I think that this key distinction helps clarify the issue.  This may not remove all of the shades of grey from the discussion, but to me at least it adds a framework for looking at a difficult issue.  I would be interested in how others look at this.

4 thoughts on “Indiana and Shades of Gray

  1. I can understand your reasoning. Many do believe that because people (who have Free Speech rights) operate businesses, that means doing business is an expression of conscience. However, in terms of legal precedent, trade and commerce are not considered exercises of conscience, just making, selling and buying behaviors. The only legal reasons allowed for refusing customers is inappropriate behavior (refusing to serve more liquor to inebriates), or an inability/refusal to pay.

    You can choose a profession that does not involve commerce. Many paths of altruistic service are admirable. But goods and services offered for profit is not altruistic activity. The goal is to enrich the owners by meeting demand with supply. If you sell to the general public, it means the whole public.

    • As I stated earlier, I am not a lawyer. I expect that what you are saying about the law is probably correct, which is why they felt the need to pass the Indiana law to begin with.It is also true that business is not an altruistic activity and that the vast majority of businesses are in business more for profit than for altruistic activity.

      That doesn’t mean, however, that business people give up their right to free speech by entering business. Business people get involved in social issues all the time. The businesses that are boycotting Indiana because of this law are doing the exact same thing that the baker did. They are saying they don’t want to serve Indiana because they disagree with Indiana’s statement. Should we force these businesses to serve Indiana? It is the exact same issue.

      • I’m not a lawyer either, though I have done paralegal and contract work for lawyers. The general public has kind of a strange idea of what Freedom of Speech is, thinking it’s like “I can say/do whatever I choose on my own property, which isn’t remotely true. They often forget that one kind of right gets balanced against other rights. That’s why you don’t have the “right” to yell fire in a crowded theater as a joke, or blabber “What if I had a bomb in my suitcase?” to the TSA agent at the airport.

        Free Speech mostly just means you have the right to criticize the government in public without being imprisoned or fined absent due process. Freedom of Speech does not guarantee zero consequences, and some kinds of content (hate speech, incitement to violence) open the speaker to direct liability including fines and imprisonment.

        There are legal differences between interstate commerce and business done between two parties at the same locale. In terms of your business law hypothetical example, those entities outside Indiana are its “customer”. You can’t force customers into your store to buy. But, if you are a business that sells to the general public, you do have an obligation to serve the ones who decide to cross state lines to get to you. You, on the other hand, can’t be forced to do interstate business, but there will be both Federal and State (and sometimes county or municipal) regulations and obligations placed upon what you must do for those who arrive locally to trade.

  2. I agree that free speech doesn’t mean there are no consequences. For example, it is entirely appropriate to boycott a business that makes political statements you don’t like. Free speech has been broadly interpreted as being much more than just government speech. For example, the courts have sided with artists using art to express their ideas, even if it offends people. I gave the interstate example more of a moral equivalence than a legal equivalence. You make an excellent point that it is not legally the same. So, let’s get back to the point I made originally? If a business is asked to cater a Ku Klux Klan rally, should the business be forced to do it?

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