Confirmation: It Isn’t About Religion

The Indianapolis Star, in one of its increasingly rare forays into what used to be called “news,” reported on a very interesting study investigating popular opinion about the pending Supreme Court case brought by a baker who refused to sell a wedding cake to a gay couple.

As most of you are aware, the baker–routinely described as very pious–has argued that forcing him to sell one of his cakes to a same-sex couples would not only violate his religious liberty, but would amount to “compelled speech.” That is, he argues that civil rights laws requiring him to do business with people he considers immoral are really compelling him to affirm his approval of that immorality.

The free speech argument appears to be a fallback, in case the Supreme Court doesn’t buy the religious liberty one. In any event, most people who are aware of the controversy see the conflict as one pitting respect for “sincere religious belief” against the rights of LGBTQ citizens to be free of discrimination.

As the study found, it really isn’t.

I vividly recall a conversation I had many years ago with a friend I knew to be a truly nice person. He wasn’t a bigot. I was Executive Director of Indiana’s ACLU at the time, and he understood the organization to be a defender of individual liberty and the proposition that the power of government (and popular majorities) to prescribe our behaviors is limited by the Bill of Rights.

He wanted to know why the ACLU didn’t think civil rights laws violated individual liberty.  Doesn’t “freedom” include the freedom to discriminate?

The study cited by the Star confirms the continued salience of his long-ago question.

People who believe businesses should be able to deny services to same-sex couples aren’t necessarily citing religious reasons for discriminating, a new study by Indiana University sociologists has found.

Instead, many simply believe businesses should be able to deny services to whomever they want — even though that violates civil rights laws that protect certain classes of people….

Slightly more than half of those surveyed said they supported a business denying wedding services to a same-sex couple, whether the business cited religious opposition to same-sex marriage or non-religious reasons.

Ninety percent of self-identified Republicans said that businesses should be able to choose who they do business with.

I’ve been in these discussions, and more often than not, people who believe civil rights laws deprive them of their liberty will say something like: “what about those signs that say ‘no shoes, no shirt, no service?” or “the government shouldn’t make the kosher butcher sell ham,” or “what if a Nazi asked the baker for a swastika cake?”

I will restrain myself from launching into one of my “civic ignorance” diatribes, and merely point out that civil rights laws do not deprive merchants of their liberty to refuse service based upon a customer’s behavior. Merchants also retain the liberty to decide what goods they will sell (if a menswear store refuses to stock dresses for sale to a female customer, that doesn’t violate anyone’s civil rights.)

Civil rights laws prohibit discrimination based upon the identity of customers who are members of legally specified classes. (FYI: Nazis aren’t a protected class.)

Do those laws curtail a merchant’s “liberty” to discriminate? Yes. So do laws prohibiting religious parents from “whipping the devil” out of their children, and a variety of other “sincere” behaviors deemed damaging or dangerous to society.

Here’s the deal–the “social contract.”

When a merchant opens a shop on a public street, he depends upon local police and firefighters to protect his property. He depends upon government to maintain the streets and sidewalks that allow customers to access his store, and the roads, railways and air lanes that carry his merchandise from the manufacturer to his shelves. In return for those and other public services that make it possible for him to conduct his business, government expects him to pay his taxes, and obey applicable laws–including civil rights laws that protect historically marginalized groups against his disdain.

The butcher, the baker, and the candlestick maker retain their liberty to advertise that disdain. They retain the liberty to lobby for repeal of civil rights laws. They retain the right to exclude people they consider immoral or unpleasant or just “different” from their social gatherings, their churches and their homes.

As I’ve often said, if you don’t like gay people, you don’t have to invite them to dinner. You just have to take their money when it’s proffered in a commercial transaction.Is that really an intolerable invasion of your liberty?


  1. Has anyone ever heard of a Catholic baker refusing to sell a wedding cake to a couple, both of whom have been divorced? Is he not condoning what his church considers a cardinal sin (adultery, because divorce is not permitted in his church). Why do some people think that God will punish them if they do not try to prevent someone else from doing something their religious believe prohibit them from doing? Do they drive at exactly the speed limit on a highway to prevent others from breaking a law by speeding? When are these holier-than-thou people going to realize that the world does not revolve around them?

  2. Sheila,

    “Is that really an intolerable invasion of your liberty?”

    Yes. Especially so, if you reject democracy.

    I forgot who said it, “we have three choices: authoritarianism [Nazism is a good example], accommodating, and democracy.”

  3. As someone who served the Public with my services as an artist in metals and a custom metal work business… when you serve the PUBLIC – you serve the PUBLIC(.) or get out of business – because it (business) doesn’t have room for religion and is not controlled by religion – its motivation is product – customer – sale(.) Do churches that do bake sales discriminate? Or Buddhists who make things to support themselves? Nope – as long as they get that dollar. That is why it is called currency I believe. – (which is why if they can preach politics – I believe they should forfeit ‘tax-exempt’ status! oooo don’t get me started… ~*) )

  4. A baker who refuses to bake a wedding cake for a gay couple bothers me; however, a baker or any business who refuses to take cash for any transaction bothers me far more.

    The attached New York Times article is a heads up for those who pay in cash. Our days of cash transactions may be limited which seems to be a discriminatory action against those who do not have credit or debit cards for whatever reasons.

  5. “When a merchant opens a shop on a public street, he depends upon local police and firefighters to protect his property. He depends upon government to maintain the streets and sidewalks that allow customers to access his store, and the roads, railways and air lanes that carry his merchandise from the manufacturer to his shelves.”

    Is it safe to assume that the Gay Communities taxes are supporting the above infrastructure ?

  6. John Locke would be amazed at how his theory of the social contract has been abused as it plays out between government and its citizens, citizens, that is, who may be straight or gay, black or white, male or female, rich or poor etc. Rights based on the religion of Jesus are at best slippery since he has no recorded views on gays, for instance, and we do not in any event now have the religion of Jesus but rather one about him concocted by medieval monks.

    However, these theoretical concerns are of little if any significance to the courts, who are beyond Locke and into Holmes, who noted that law was rooted in experience. Experience tells me that we do have gays, blacks, females and the poor among us, and that if we are to follow our small d democratic values, then their rights supercede the rights (if they exist) of shop owners and others who claim to be exempted from following democratic values.

    Sheila is right to define some of the things we the general public give to business owners to carry on their activities, to which I would add police and fire protection, patent protection and a
    host of other social and economic gifts that enable them to carry on their businesses. It is clear to me that such businesses in return owe the general public the obligation of service without discrimination under either the conceptual views of Locke or Holmes with the single exception, as Sheila notes, of behavior. I do think one may refuse service and turn out bulls in one’s china shop, whatever they believe.

  7. Those who wish to use their religious beliefs to deny selling materials or services on racist, bigoted, anti-LBGTQ basis need to PRIVATIZE THEIR BUSINESS by requiring membership with payment of dues to qualify as a customer. They can then refuse to their religious heart’s content. Sam’s Club and Costco require membership and annual dues to sell their goods and services; no idea what requirements must be met other than the annual payment of dues. If small businesses lose money by selective customer acceptance…so be it. They can try to fill their bank accounts with sanctimonious self-gratification that they have maintained their religious qualifications to remain in business.

  8. Hey Red George O’Malley…good to see your post! Hope you’re doing well. We’ve missed you! Cheers.

  9. Thank you, Professor, for such a clear explanation. Thanks to all the posters for their logical comments. I plan to save this so, when I get lost in emotion, I can pull this out.

  10. Along the same vein, I have had a “christian” directory of businesses delivered to my house several years ago, apparently so I could patronize those businesses that practiced “christian” values of honesty and fairness as well as providing the expertise to do the business’s work.
    I avoided these businesses as I felt they were deliberately identifying themselves as “exclusive” and were subtly discriminatory. When I buy goods and services, I did not care to be proselytized and faced with the constant barrage of prompts to proclaim my support of their views.

  11. There are I believe many parallels between Sheila’s civil literacy work and my climate change interests. In both cases people have some general knowledge gleaned from public resources like the Internet including social media but are short on detailed knowledge that can only be revealed by more formal learning. Those can be critical differences and as Dunning Kruger’s research has shown it’s human nature when we know something that we think to be somewhat sophisticated about a topic, we think that’s also the limit of human knowledge.

    Ask the average man in the street who can’t name the three branches of government about protected classes or the social contract or earth’s radiant energy balance and you’ll get the same blank stare. If they are conscious however they might be inclined to patch the holes in their knowledge with some conspiracy theory. Those are the would be supporters that predatory politicians and oligarchs dream about.

    It’s a volatile mix of self interests untethered to complete knowledge on all sides of the struggle for control.

    The enlightened approach in that case is to listen and learn from those who chose that particular specialty but those who have been conditioned for extremism are programmed to replace learning with growling.

    We didn’t evolve here we were herded here for reasons.

  12. I can hear Drumpf supporters saying ooga ,ooga, grunt, grunt.

    Seriously. doesn’t religious freedom cut both ways? If my sincerely held FSM beliefs says I don’t have to tolerate intolerable cake makers, can my beliefs force the cake maker to leave?

  13. Using religious “beliefs” to discriminate grossly as these “bakers” are doing is just another example of how some of us have become so self-absorbed that we fail to see the consequences of our actions in benefitting or, in this case, doing harm to society and other people as well.

    Those so-called religiously pious people who discriminate for the sake of discrimination will always find an excuse to push away a different “tribe”. More primitive fear….

  14. There’s freedom and power. Freedom is for everyone power is the ability to impose your self interest on others. Authoritarians feel entitled to power.

  15. To quote Detective Sargent Joseph “Joe” Friday “just the facts,mam.” And those facts make for a hard case and perhaps bad law. As reported in the New York times, quoting Baker Phillips’ lawyer, Mr Mullins and Mr Craig could have purchased any cake in Baker Phillips shop. However, what they asked for was a cake decorated to commemorate their marriage, which had already taken place elsewhere. Baker Phillips did not want to decorate the cake expressing a sentiment that he found offensive to his religious beliefs. The couple was offended that he would not decorate a cake specific to their request.

    Here comes the hard part. Baker Phillips is not refusing a sale, they can buy a cake, he is just not adding specific information on the cake. Obviously the couple could have bought a cake from the baker and decorated it themselves. But they wanted the Baker Phillips to do it because of his specific artistic expertise in cake decorating.

    I see in the comments that one commentator does metal work, which prompted this fictional case. An African American, a devout Muslim, wants a new gate for the front of his house. He sees that Metal Worker, a devout Jew, does beautiful work, of which there are many examples in his shop, and want to purchase a specially fabricated gate from him. Devout Muslim wants his gate to be replica of the “Work will set you free” gate found at entrance to Dachau. Metal Worker is understandably offended and refuses. Devout Muslim is embarrassed and humiliated by the refusal and files a complaint.

    How do we resolve the dilemma posed by asking a person, engaged in a business open to the public, to provide a service and/or a product that is so offensive to them that they would rather give up the income than preform the task. I think that my fictional example makes it easier sympathize with Metal Worker. But we should not be so quick to dismiss Baker Phillips’firmly held religious beliefs. I don’t have an answer here. Initially I was offended by the baker’s refusal. But on reflection, I think the issue of compelling or coercing behavior to meet social norms is a slippery slope.

  16. An irony to the baker’s stance is this. If one of the gay couple were a firefighter, and the baker’s store caught fire and he was trapped by the flames, would this baker insist that he only be rescued by a heterosexual firefighter? If the firefighter in the best position to rescue the baker were the gay firefighter, to whom the baker had just denied service, the baker would expect that gay firefighter to risk his/her life to save his (the baker’s).

  17. Thanks, ALG …

    I check in every day, just haven’t had much to say in
    the past few months …

  18. How many gays and bakers complain? Could this be another issue kept alive to distract the body politic?
    How does this compare with defunding CHIP or reforming “entitlements”?

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