Andrew Sullivan on baking cakes

As always the following is my personal opinion and not necessarily that of my employer, friends, family or potted plants.

To follow news from the USA I regularly read the New York Magazine Daily Intelligencer. Once a week or so they have a column by Andrew Sullivan, who is the very peculiar combination of (a) Catholic, (b) homosexual, and (c) conservative. His average column follows a fairly predictable formula: first complaining about Donald Trump or the state of the Republican party, then a section break, then bashing left-wing activists over something or other. So as to maintain one's conservative reputation despite criticising conservatives, I presume?

Anyway, the most recent column takes a different approach. Titled "Let him have his cake", it takes the side of a religious baker who refused to make a wedding cake for a gay couple and now finds himself in front of the US supreme court. Then there is a section break, and then he complains about Donald Trump. It is the other way around, you see?

Anyway, his gay wedding cake argument proceeds as follows:

1. If there are alternative solutions, like finding another baker, why force the point? Why take up arms to coerce someone when you can easily let him be -- and still celebrate your wedding?

That is probably what I would do in such a situation, as I am relatively conflict-shy. But this is a legal issue, one of principles, and as always in such situations it has to be asked what would happen if everybody made use of the 'right' to refuse service.

It is my understanding that the USA had a time when a black person could find themselves in a town where every single bar served only whites. Surely given the rampant religiosity in some parts of that country it is at least not immediately absurd to think that a gay couple might find themselves traveling through a town where every single hotel would turn them away by citing religious objections to gay marriage?

2. The baker's religious convictions are not trivial or obviously in bad faith [...] those religious convictions cannot be dismissed as arbitrary (even if you find them absurd). Opposition to same-sex marriage has been an uncontested pillar of every major world religion for aeons.

This is a really interesting argument. My first response is that yes, religious convictions are all entirely arbitrary by definition. That's just the thing about religion, it is based on faith instead of logic or empirical evidence. The founders of one religion just made up some random beliefs, and the founders of another religion just made up some different random beliefs, and that is why there is not just one religion on the planet, as would be expected if there existed an actual god who communicated with people. Conversely, ideas that are not arbitrary are shared across different belief systems and accordingly not religious per se.

(Just as an aside, I don't really see where in the Bible or the Koran it actually says "Thou shalt not marry somebody of the same sex." Does it actually say so somewhere? I know that the Bible considers gay sex to be an abomination, at least between men, but funnily enough that particular "conviction" is not really insisted on very much at this time, or at least not to the degree that any significant number of religious politicians tries to outlaw gay sex. Because such convictions are indeed arbitrary.)

So yes, the conviction that gays should not marry is arbitrary. And that raises the problem that if there is a right to discriminate based on religious conviction, people can simply make up additional convictions to refuse service to other groups and in other cases. It is hard to argue that some taxi driver's newfound religious conviction that they do not want to drive around an interracial couple is 'arbitrary' if something as obviously arbitrary as not being able to use a light switch on the Sabbath is considered not arbitrary.

Interestingly, Sullivan seems to understand the problem - I worry that a decision that endorses religious freedom could effectively nullify a large swathe of antidiscrimination legislation - but ultimately this worry does not carry the day with him. Is he perhaps a bit naive about the intentions of the other side?

As a mirror image of the above we then get the following:

3. Equally, I worry that a ruling that backs the right of the state to coerce someone into doing something that violates their religious conscience will also have terrible consequences. A law that controls an individual's conscience violates a core liberal idea.

I do not understand what terrible consequences he expects. The consequences would be that people are treated equally, hardly something I would call terrible. And I think he confuses "controlling an individual's conscience" and "making them behave professionally". Those are not the same thing. An individual is allowed to believe that gays shouldn't be allowed to marry, but they should not be allowed to discriminate against gays. It is really as simple as that, even knowing that Sullivan will call me a "fanatic" for seeing it like this.

4. Much of the argument for marriage equality was that it would not force anyone outside that marriage to approve or disapprove of it. One reason we won that debate is because many straight people simply said to themselves, "How does someone else's marriage affect me?" and decided on those grounds to support or acquiesce to such a deep social change. It seems grotesquely disingenuous now for the marriage-equality movement to bait and switch on that core "live and let live" argument.

Well, I can only say that I find this argument rather disingenuous. The discussion went to the effect of, "if Bob and Jim are allowed to marry, your own heterosexual marriage does not lose any of its status, so what is it to you?" If the discussion was to the effect of "hey, we just want you to let Bob and Jim marry, but you can still treat them like second class humans and discriminate against them", then I have missed that.

5. A commenter on Rod Dreher's blog proffers a series of important questions in this respect: "If the cake shop loses, does that mean that if I'm, say, a freelance designer or an artist or a writer or a photographer, I can no longer pick and choose my clients? If the Westboro Baptist Church comes to me, I can't reject them on the grounds that they're deeply un-Christian scumbags? If I'm Jewish, do I have to design a Hitler's Birthday cake with swastikas on it? Would a Muslim cake-shop owner be forced to design a cake that shows an Islamic terrorist with crosshairs over his face, a common target design in most gun shops in America? Can a gay, atheist web designer choose not to do work for the Catholic Church, or would we have the government compel him to take on a client he loathes?"

This is perhaps the superficially most convincing argument presented by Sullivan. (Partly it may be that I find this style of argument particularly useful.) However, I feel that it mixes up a few different scenarios.

Yes, it seems to me that somebody who opens a shop or provides a service should not be able to refuse service to a church merely for being a church. That would be exactly the same kind of discrimination as refusing service to homosexuals, and it would be unacceptable to me. On the other hand, I think that a Hitler's birthday cake or a face in cross-hairs is a different kind of message to write in glazing than "Bob & Jim".

Yes, I get the idea that the latter supports gay marriage and is thus as objectionable to a certain kind of deeply religious person as mass murder is to other kinds of persons, but I believe that one would have to be quite nihilistic to not see the difference between those two points of view. One message seems objectionable because of an arbitrary, made-up religious dogma, the others are objectionable because they are demonstrably hateful and evil. Still, I understand how this is a difficult difference to see for some who hold a certain view of the first amendment of the US constitutions, for the kind of person who, for example, sees European countries outlawing Holocaust denial as engaging in a terrible restriction of free speech and taking the first step towards totalitarianism.

Finally,

6. It always worries me when gays advocate taking freedom away from other people. It worries me as a matter of principle. But it also unsettles me because some gay activists do not seem to realize that the position they're taking is particularly dangerous for a tiny and historically despised minority.

Again, these are two very different types of freedom we are talking about. Historically, the freedom taken away from gays was the freedom to exist. The freedom Sullivan considers to be taken away from the baker is the freedom to discriminate against others. I find it puzzling how the latter can possibly be held to be a freedom worth defending, let alone be equated with the former.