I’m straight. Suppose I go into a bakery and tell the baker I’d like to order a wedding cake for the nuptials of my friends Paul and George.
If the baker declines to serve that particular request, because he doesn’t provide cakes for same-sex weddings, has he discriminated against me? Remember, I’m the customer. There is no situation covered by law – at least none that exists now – in which the baker can be said to have discriminated against Paul and George, who are not the customers.
The baker hasn’t discriminated against the customer on the basis of sexual orientation. It’s quite probable he doesn’t even know my sexual orientation at the time of refusal. I’ve never once gone into a business establishment and announced that I’m straight before initiating a transaction. We can assume I didn’t in this case.
But, hey, let’s say I did. Let’s say I made an exception and clarified at the outset that I’m straight. Then asked for a wedding cake for Paul and George. Then the baker politely said no.
Has the baker – let’s call him Henry – discriminated against me? If so, how?
Now let’s suppose that while I’m in the bakery, trying to decide if I want to buy a cookie from the display rack, two men come in. Their names are Kerwin and Todd. They want to order a wedding cake, for their upcoming wedding.
Henry the baker politely declines to accept the order.
Has he discriminated against Kerwin and Todd based on their sexual orientation? If so – how? He just treated them exactly the way he treated me, a straight person.
The truth is, in both cases, Henry was declining to make a cake for an event whose character we can assume he doesn’t care for. He wasn’t discriminating against the customer. He was discriminating against the event, and making the choice not to offer his services for it.
The lunacy of the “protected characteristics” view of law is that it sees the same transaction as a different one, based on who is involved in it.
That is the very definition of inequality before the law. It’s the very definition of discrimination by the law.
Yet applying the recently-concocted standard of “protected characteristics” (derived by regulators and the courts from the Civil Rights Act, and largely consonant with the explicit 2010 law on this topic in the UK) produces exactly this situation. The same transaction is viewed differently by the law depending on the characteristics of the parties involved.
Justice Sonia Sotomayor referred to it directly during argument on the Masterpiece Cake Shop case this week:
Obergefell came out in 2015.
In 2017, Justice Sotomayor proclaims that if you don't want to participate in gay weddings, you cannot be a baker.
You can thank Obama for this constitutional scholar.
— Red Nation Rising (@RedNationRising) December 6, 2017
Many will be quick to point out that Sotomayor was probably referring in this passage to the Masterpiece baker’s (Jack Phillips’) religion being the protected characteristic — which could allow him to “not sell to some.” I believe those people are right, and that that’s what Sotomayor meant.
But that is actually the same point I am making. The lunacy of “protected characteristics” is precisely that they can be wielded either to unequally burden some people or transactions, depending on the characteristics of the participants, or to unequally distribute get-out-of-jail-free cards. Why should only people who profess religious beliefs be able to turn down business? Especially when they only need get-out-of-jail-free cards because we have decided to pre-burden business transactions with the inequality of “protected characteristics”?
Consider: except for my being female, there is practically no situation in which a baker could be held to “discriminate against” me – no matter how badly he might treat me.
Meanwhile, perfectly normal business decisions, which the baker could make without retribution from the state if I were the customer, become reasons to drive him out of business and destroy his life’s work if he makes them in the case of a customer with “protected characteristics.”
Unless — perhaps — the baker can successfully deploy the get-out-of-jail-free card of his own “protected characteristic.”
It would sound like insanity, if proposed to us in these terms before we had backed into it, as we now have.
I’d like to leave you with three things to think about.
One, this is the method by which identity politics undermines the rule of law. It simply dismisses the principle of equality before the law, and it makes the application of law about what classes of people are doing to other classes of people, instead of identifying crimes that are the same no matter who is involved in them, and making sure that the government treats everyone the same.
Two, this is the method by which identity politics kills freedom. “Protected characteristics” are a dodge now: a convenient way to attack beliefs, rather than a way of looking out for people.
This method bores in through the tunnel of “identity” to punish people for their beliefs. It pretends that it’s not going after beliefs, when that is exactly what it’s doing. Privileging “identity” – which doesn’t even have a fixed meaning in law – is coming to literally make it impossible for people to hold their beliefs and also live peaceably and equally in society, able to run businesses or hold jobs.
Three, we have already lost the battle for freedom, if we accept continuing government operations on this basis. Freedom is incompatible with state power being wielded through a regime of “protected characteristics.” We should not all have to agree on whether same-sex marriage is good or bad, sinful or awesome, in order for all of us to be able to live with each other. When we get to that point, the problem is that government power is being used for too much in our lives. It’s forcing us to settle disputable moral issues before we can get anything else done.
Demanding that bakers do what seems wrong to them in a case like this is, unquestionably, requiring them to affirm agreement on a disputable matter of social mores in order to engage in their chosen profession. As long as we foolishly think we can have that principle and manage it too, we will simply continue to lose more and more freedom.
No one wants to make gay people feel bad (or, if you do, you’re certainly not expressing my sentiments or those of people of goodwill). But a government that functions as a padded room for its citizens inevitably starts treating the citizens like the residents of one.
We can’t have freedom and the uninterrupted gratification of never being disagreed with or offended. As a matter of operating a government of the people, it is much less important to agree on our moral and social views than it is to agree on that.
No one in America but your mother – and maybe not even her – should have to care what you think the baker should do. Or, of course, what I think. Law cannot be more stupid, malfunctioning, and ill-served than to be taken up with our opinions on this topic. That includes the opinions of the nine Supreme Court justices.