I’ve been mulling over the recent case of the Colorado baker refusing to make a wedding cake for a same-sex couple. It has led me to finally understand how this kind of case differs from, say, Woolworths refusing to serve black people in the South in the 1960s. This has been an unanswered question for me, because the Woolworth’s example has been the way that people attacking the baker have framed the case—as a civil rights question about access to public services, the same as denying black people food and coffee in Woolworths in 1963.
And from the other side, it has been framed as an issue of religious freedom, of the right of a person to follow their deeply-held religious beliefs.
But it turns out that neither one of those is what is happening here.
Let me prefix my explanation by saying that I will be using “forbidden” words in this post. I’m doing so in order to emphasize a point. They are hurtful words that I would never use in my daily life; they are words that my beloved grandmother would have washed my mouth out with soap for saying; but they are words that are critically important to understanding the point I’m making.
Now, the issue in these cases has been, should a baker be forced by the government to make a special cake for something that offends the baker’s deeply held beliefs? In order to clarify the issues involved in this matter, let me ask the following two hypothetical questions, remembering that I am using forbidden words for effect. Here are the questions:
Should a Jewish baker be forced by the government to bake someone a special cake that says “Hitler was right to turn the kikes into soap!”?
… and …
Should a black baker be forced by the Government to bake someone a special cake that says “The KKK should hang every nigger that they can find!”?
That’s it for the banned words, they leave a bad taste in my mouth, but they make the point very clear. For me, the answer to both these questions is, Hell no, they shouldn’t be forced to do that!
And that highlights what I see as the difference between the Colorado baker case and the Woolworths case.
The difference is, in the baker’s case the Government is forcing one person to carry a message for another person. This is NOT what was going on at Woolworths. This is not about refusing service, religion, civil rights, or gay rights.
It is about refusing to be a messenger for words we disagree with, which is a very different thing.
So let me propose a two-pronged test to differentiate the baker’s case from the Woolworths case. I would say that anyone is entitled to refuse a request to create something for someone IF:
1) The item in question is a special, one-off item and not a standard, off-the-shelf item,
2) The item is required to carry a message, either expressed or implied, in support of some cause or idea with which the maker does not agree.
Using this two-pronged test, neither the Jewish baker, the black baker, or the Colorado baker could be forced to create a special item containing a message that is odious to them.
This two-pronged test makes it clear that it’s not a religious issue. It’s not a civil rights issue. It’s not a gay rights issue. It’s not an issue of refusing service.
Instead, it is an issue of Freedom of Speech, or more to the point, an issue of Freedom NOT to Speak. I see nothing in the Constitution saying that the Government can force its citizens to say things that they object to, regardless of whether the objection is racial, religious, or for any other reason large or small.
And that’s what I learned from the story of the Colorado baker …
My best to all on a peaceful evening, clear on the land here with a low mist over the ocean … what a miraculous planet we inhabit.