Masterpiece Bakery, gay marriage and human rights: Pandora’s cake-box?
The US Supreme Court has just ruled in favour of the Colorado baker who refused to produce a wedding cake for two men. There were many technical aspects to the case, which will keep lawyers (academic and otherwise) wrangling for some time. It certainly should not be assumed though that future disputes with similar facts will necessarily result in the same conclusion. A key factor in this instance was the stance of the Colorado Human Rights Commission, as it was found to have adopted a hostile, rather than neutral, approach towards the baker’s religious beliefs. Significantly, in other disputes, the State had permitted businesses to decline orders for cakes which demeaned gay people and gay marriages, and in light of this it was found that equality laws had not been applied in a neutral way with regard to religion and belief. Moreover, another important finding in this particular case was that the baker had been found to be producing an artistic creation, and consequently making an expressive statement which engaged his constitutional right to free speech.
When fundamental rights of individuals meet in a head-on collision, there is never an easy outcome, but the ruling in this case still raises as many questions as it answers. As we have discussed before on this blog, it is extremely unclear how to draw a meaningful line between artistic expression and provision of a service, and if some commercial enterprises can claim exemptions from anti-discrimination provisions whilst others cannot, people will correctly perceive the legal system to be arbitrary and unfair. Why should we protect the conscience of someone running a patisserie, but not a print-shop? Or conversely, can we expect a customer with a protected characteristic to understand why they can complain about discriminatory treatment when doing their weekly food shop, but have no right to object to the same behaviour from their hair-dresser, two doors down from the supermarket?
The other distinct, but related issue, is whether the outcome of the Colorado case would or should have been any different if another protected characteristic had been involved. What if a baker had claimed that his or her religious beliefs were opposed to inter-racial marriage, and had refused a wedding cake for a couple with different racial identities? Given that previous judicial pronouncements in the US and Canada have expressly drawn the parallel between the struggle for LBGT rights and the civil rights movement in the States, it is unsurprising that this question is arousing strong feelings. For instance, the Washington Post quoted Abraham Hamilton III, general counsel to the American Family Association (see link in Related Articles below), who stated as follows:
“As an African American man myself, I think to conflate issues concerning marital preferences as something as easily identifiable as skin color is offensive”. Hamilton believes that “the two are not remotely on the same page” because skin color is a “readily discernible characteristic”, whilst “sexual orientation is not.”
This comment is disturbing, as Mr Hamilton appears to be implying that race is ‘real’ and can be objectively determined, whereas sexuality is a matter of ‘preference’. Obviously, it must be acknowledged that the American Family Association is a campaign group with a particular agenda, but this statement still reminds us that there are voices suggesting that some protected characteristics are more significant and valid than others. Bearing this in mind, it would be very troubling for a legal system to go down the route of classifying some types of prohibited discrimination as less serious or socially problematic. Furthermore, it is inaccurate to suggest that racial identity is a clear cut matter, which is not open to manipulation or debate. Given that the legal consequences of the ‘one drop’ rule are still well within living memory in the United States, and also that Native American individuals are currently controversially required to prove their status through blood-typing (irrespective of their personal identity, individual experiences or the traditions of their tribe) there is plenty of room for debate about the nature and boundaries of race in contemporary America. This certainly does not render laws protecting people from racial discrimination valueless or meaningless, but exactly the same point can be made in relation to social and cultural debates about sexual orientation.
There may, of course, be convincing reasons to allow businesses some exemptions from general discrimination law when taking orders, as a means of avoiding compromising the conscience of those who own them. However, if such flexibility is to be allowed, it has to be on a rational basis, which can be understood by citizens and seen to be fair. Neither favouring certain types of business, nor prioritising some victims of discrimination over others, is a way to develop a coherent legal system and foster a coherent society. If equality law itself treats some categories of people as having less dignity and rights than others, we are truly opening Pandora’s Box.
Masterpiece Cakeshop v Colorado Civil Rights Commission (US Supreme Court 4/6/18)
A conversation with Native Americans on race (New York Times 15/4/18)
Cake cases: Gay marriage, freedom of expression in Northern Ireland and the USA (Balancing Beliefs)