The new cake wars is not a triviality, even though on the surface it may seem like it. The issue here is that, like with all human rights, we have rights that conflict and must be balanced. In the case of bakeries refusing to bake cakes for gay weddings, we have non-discrimination laws, but we also have the right of conscience of the business owners – if their values conflict with public policy, under what conditions can they claim conscientious objection?
Human Rights v. Religion & Conscience
Let me propose some principles for managing this problem.
Principle 1: Human Rights Trump Individual Conscience in the Public Realm in Cases of Direct Personal Discrimination: Whenever any value system, be it rooted in religion or natural philosophy (such as social Darwinism or evolution) violate what we determine to be a human right, the human right wins out.
That means that based on your religion (including evolution ;), you can not violate the clear human rights of others. However, does this trump ALL of the the individual objectors rights, or do some of their rights, such as to free speech for public criticism and mockery still exist?
Limiting Discrimination as a Trump Card: Refusing Compulsion Regarding Content and Activities
Principle 2: Human Rights do not trump individual conscience in the public realm in cases of engagement in objectionable content or activities. This ‘secondary’ discrimination may impact distinct people groups who engage in legal or illegal activities that many consider immoral. Such discrimination, however, is protected by free speech and limiting government compulsion.
For example, in some states, pornography and prostitution are legal. For some odd reason, some people find such activities morally objectionable. If a pornographer came to my bakery and asked for a cake to celebrate the release of their new fecal fetish film The Eliminator, I would like to have the right to refuse. If this pornographer, however, were asking me for a birthday cake for their kid, I would not have grounds for refusal.
When I am asked to commit my services to a morally illegitimate activity, or to express morally objectionable content, I think I should have an out as a conscientious objector. This is not direct personal discrimination. But it could be viewed as indirect, or secondary discrimination.
By extension, I should be given leeway to not support certain activities like gay marriage or homosexuality just because they are legal. In addition, just because the KKK, neo-Nazis, or sharia law supporters want me to make cakes with their flags on them, even if that is protected speech, I should not be compelled by government, nor should my refusal be seen as discrimination against whites, Germans, or Muslims.
And in fact, this freedom of conscience extends to the legality of not only refusing participation, but active public moral criticism, and mockery, even if the law disagrees. As long as your speech is short of libel or incitement, you must have the right to speak out against what you see as social evils.
Choose Your Poison – Government Compulsion or Secondary Discrimination
There is not simple solution here. If we choose that public vendors can not discriminate based on events and content, then they have no right to conscientious objection – so the Jewish bakery would be forced to do the swastika cake, the Muslim bakery the bacon cake, the black-owned bakery the KKK cake, and the Christian bakery the prostitution or porno cake. This is sometimes what is called government compulsion.
The evil of allowing conscientious objection is that some people will skirt the law in order to discriminate. Don’t want to serve blacks? Just object to their event. But disallowing conscientious objection is like forcing pacifists to fight and kill because some that claim pacifism are faking in order to get out of combat.
Allowing people the freedom of ‘secondary discrimination’ will allow some abuses, but that is always part of freedom. Unscrupulous people always try to abuse freedom, but that is not reason enough to remove all freedom, which I argue is a greater evil.
What say ye?