The gay cake equal-rights fight has taken a surprising turn in Ireland—for the worse.
On Tuesday, a Northern Irish court ruled in favor of gay-rights activist Gareth Lee, who sued the Ashers Baking Company when it refused to bake him a cake. A just and fair result? Not so fast.
Lee had asked that the bakery make him a cake featuring infamous Sesame Street couple Bert and Ernie with the message “Support Gay Marriage” written on top. The bakery, owned by a Christian couple, refused. Lee filed suit alleging he was discriminated against based on both his sexual orientation and his political opinion.
And on this one, I side with the Christian bakers.
The Belfast County Court judge ruled that the Ashers Baking Company is a “business for profit” and not a religious group—and that while the owners have “genuine, deeply held religious views,” that doesn’t exclude their business from having to follow the law.
That part I agree with, at least in the abstract. Private businesses are not religious organizations; they are private businesses. They exist for the primary purpose of carrying out that business and making a profit—and at least in the United States receive certain legal and tax benefits accordingly.
Here at home, if their primary purpose was religious in inspiration, there are plenty of other incorporation structures that the founders could have chosen to protect and ensure that priority instead. The ridiculous idea that private businesses can take on the religious beliefs—and thus protections—of their owners or founders was wrongly asserted by the United States Supreme Court in Burwell v. Hobby Lobby, a ruling that has been wreaking havoc ever since.
But while I don’t know the intricacies of Northern Ireland’s laws and am not going to weigh in on the particular wisdom of the Belfast court’s ruling, under American law such a ruling wouldn’t likely stand. And more significantly, it’s the wrong ruling politically and morally.
It’s one thing for a baker to refuse to make its standard issue wedding cake for a gay couple. That is flagrant discrimination on the basis of sexual orientation and—at least in the 29 states that prohibit discrimination based on sexual orientation and/or in those of the 37 states where marriage equality is legal and where discrimination based on marital status is prohibited—wedding cake bakers have to bake cakes for all couples. If a business offers its services to the public, than that business has to offer those same services equally to everyone.
Period. End of discussion. That’s the law. And also the basic principles and values on which the United States was founded.
But… a cake that says “Support Gay Marriage” is different. That’s political speech. And just like if I ran a bakery in the United States, I could legally—and rightfully—refuse to make a cake saying “God Hates Fags,” another baker should be able to refuse to make a cake expressing a political viewpoint in favor of marriage equality.
By the same token, in the United States a bakery can refuse to make a “Vote Democrat” cake or a “Vote Republican” cake. And while a bakery cannot refuse to sell a regular ol’ cake to Muslim customers—that would be discriminating on the basis of religion—the bakery could certainly refuse to write “Jihad Forevah!” on said cake.
See how that works?
We let businesses discriminate in all sorts of ways—“no shirt, no shoes, no service”—just not in ways against which we’ve created legal protections. Political identity is not a protected class in the United States. And it shouldn’t be, either.
Bakeries and other businesses that fall under “public accommodations” such as restaurants and stores and hotels should be required to serve all people equally. But they should not be required to endorse the political views of their customers.
We should all commit to protecting the right to free speech even in the face of—or perhaps especially in the face of—profound political disagreements. We can and must balance civil liberties, including marriage equality, with free speech. Or, to put it differently, we can all order a cake and eat it, too—the baker just doesn’t have to write political speech on it.