– by Keith Pavlischek
Well, we now have some indication how columnist Jonathan Merritt will defend his preferential option for Caesar.
Merritt asks us to imagine the following scenario:
“I’d like to purchase a wedding cake,” the glowing young woman says as she clutches the arm of her soon-to-be husband. “We’re getting married at the Baptist church downtown this coming spring.”
“I’m sorry, madam, but I’m not going to be able to help you,” the clerk replies without expression.
“Why not?” the bewildered bride asks.
“Because you are Christians. I am Unitarian and disapprove of your belief that everyone except those within your religion are damned to eternal hell. Your church’s teachings conflict with my religious beliefs. I’m sorry.”
Would conservative Christians support this store owner’s actions? Because if not, they better think long and hard about advocating for laws that allow public businesses to refuse goods and services to individuals anytime they believe the person’s behavior conflicts with their sincerely held convictions.
Not an entirely plausible scenario, but let’s play along.
Now the most obvious reply to this question is that regardless of that baker’s particular theological view, it would be wrong to insist that Caesar fine, or imprison, or force her out of business for refusing to bake my cake. In fact, a Christian might thank that baker or a similarly situated photographer for her honesty saying something along these lines:
I appreciate your honesty. Just as I would not have the state violate a conservative Christian’s dignity by compelling her to photograph a gay wedding or to bake a special cake for a lesbian wedding, so I would not have the state violate your dignity by forcing you to photograph my wedding. Besides, I know that it would be difficult for you to put your whole heart and soul into baking that cake or photographing our wedding if you have such obvious contempt for our religious and moral convictions. Thank you for letting me know about this in advance. I’ll try to find another baker/photographer who is less contemptuous of my religious convictions.
Merritt seems utter oblivious to this type of principled response to his hypothetical. And that’s because he, like the Fundamentalists he otherwise holds in such contempt, views the issue entirely through the lens of the “culture wars.” That’s why he thinks his opponents would be impressed by this:
If Christians really believe they are becoming a marginalized movement, why would they want to disempower marginalized people in the marketplace? It’s easy to codify your own biases when you’re part of the majority and get to be the one refusing services to others. But what if you’re the minority? What if others are turning you away because they think you are the abominable one?
This is a profoundly silly comment, not least of which is because of that phrase “codify your own biases.” But if both the Unitarian and the Conservative Christian have the right to refuse to photograph or bake a cake for a wedding or any other event, how does that, one wonders, “codify” either of their “biases.” How does that “codify” the conservative Christian’s “bias” that marriage, properly understood, is between a man and a woman? How does that “codify” the Unitarian’s view that marriage, properly understood, should include same sex partnerships? If it codifies anything, it codifies our preference for freedom and liberty on such matters of religious conscience rather than a preferential option for having Caesar trump either’s conscience on the matter.
Finally, note how Mr. Merritt rigs the game by talking a lot about ‘discrimination” but little about freedom and religious freedom in particular. Here we would do well to take a cue from Professor Greg Sisk, who calls our attention to all types of unproblematic “discrimination” one finds in the “marketplace”
….an attorney may choose to represent only plaintiffs who allege they are victims of sexual abuse and simply refuse to represent defendants who are accused of sexual abuse. An advertising agency may refuse to work up a promotional campaign for a Republican politician. A public relations firm may refuse to take on a Catholic archdiocese seeking to counter negative publicity related to priest sexual abuse. A psychologist may specialize in counseling women who have suffered abuse, while choosing not to accept male clients. A couples therapist may focus on gay couples, while not choosing not to work with straight couples.
Each of these examples, Professor Sisk reminds us, could be called “discrimination.” But he adds we have also used another term to describe these choices: Freedom.
What distinguishes these business choices from “the general prohibition on discrimination in goods and services” that one finds in “public accommodation” laws? What is the difference between selling a box of Oreos or an off -the shelf cake in the bakery to whoever comes in the store from a baker who declines to bake a cake to celebrate a gay wedding? What is the difference between selling a photograph in one’s retail store and refusing to photograph, edit and publish photographs in a book for a wedding? The difference is that in these latter examples,
the service or good provided is inextricably intertwined with a message or perspective that the provider may or may not wish to endorse. In these examples, the services are being devoted directly or nearly so to the promotion of a message, which thus implicates freedom of thought at its most critical. Moreover, because of the personal nature of these kinds of services, the service-provider necessarily must identify with the client, becoming a partner with the client in directly advancing the client’s goals. The connection between the provider of goods or services here is anything but collateral to the message, ceremony, position, etc.
Professor Sisk concludes:
To use the law to require the service-provider of this distinctive nature to become involuntarily tethered to a viewpoint that he or she does not endorse is simply not compatible with fundamental liberty principles. That we may not agree with those choices, or even find one or another choice repugnant, cannot be the measure of our response, if freedom is have any purchase. Here at least, we should say that the law may proceed no further.
That’s seems sensible enough and it holds regardless of which side, if any, triumphs in the “culture wars.” But Mr. Merritt would have to surrender his preferential option for Caesar to grasp the point.
Keith Pavlischek is a retired U.S. marine colonel living in Annapolis, Maryland. He was an assistant professor in the Department of Philosophy and Religion at Truman State University from 1989 to 1993, then serving as Program Director for the Crossroads Program and the Civitas Program on Faith and Public Life. Later he was a senior fellow at the Ethics and Public Policy Center. He is the author of John Courtney Murray and the Dilemma of Religious Toleration (Thomas Jefferson University Press, 1994), and of many articles on ethics, political theory, and public policy.