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Religious freedom and religious accommodations (Part 4)

September 28, 2015

I will tackle the story surrounding Sweet Cakes by Melissa in this post. "Sweet Cakes by Melissa" is a cake shop that was heavily penalized for refusing to cater a same-sex wedding, which they felt was against the principles of their religion. The rules in this post are the same as in last week's post: I will assume familiarity with the story. I will take only the Wikipedia article as it appears today (9/28) as canon. I care more about what is right rather than what is legal. And lastly, my chief concern is the application of the principles governing the interaction between the majority and the minority. As before, these principles are reproduced below for reference:

I believe that people have a right to the free exercise of their religion. This is actually only a small slice of a broader principle: that people have a right to live according to their identity.  

Conversely, it is wrong to require people to violate their conscience, their gender, their sexual orientation, their people's history, or other such categories that form one's core identity.  

I believe that the many - whether it be a large corporation, society at large, or simply "the majority" - also has a right to impose order and insure its own smooth operation.

Conversely, it is wrong for an individual or a minority group to disrupt the workings of the majority to satisfy their own needs.

I believe that, in case of a conflict, a balance should be struck. We should take the concerns of all parties into account and weigh them together to achieve a fair solution.  

Conversely, I am against one side simply imposing its will on the other. I will oppose actions whose chief goal is to forcefully restrict the freedom of others, whether it comes from the minority or the majority.  

I believe in cooperative, common-sense solutions characterized by nuance and empathy. 

Conversely, I am against ham-fisted, absolutist, or antagonistic decision making processes.  

Of course, we will not always find perfect solutions that perfectly satisfy all these principles. But especially in such cases, I believe that we should take special care not to favor the strong over the weak, the large corporation over the individual employee, the majority over the minority, or profits over personal rights.

Let's get right to it: first, the owners of the cake shop have a right to free religious exercise. They should not be forced to participate in an activity that violates their sincerely held beliefs.

But the State of Oregon also has a right to enforce its 'equal accommodation' law, and the same-sex couple has a right to walk into any public business and expect and receive that equal accommodation.

So that is the conflict. How can we resolve it? As before, it would be wrong to simply allow one party to unilaterally impose its will upon the other. That is to say, it would be wrong to simply allow the owners of the cake shop to refuse service, and it would also be wrong to simply force them to violate their conscience and cater the same-sex wedding. Both sides must be taken into account in our solution.

So how can we balance the rights of both parties? Is there a way to protect both the cake shop's free exercise of religion, and the same-sex couple's equal accommodation? I believe there is. In fact, there are multiple, simple ways to preserve the rights of everyone involved in a live-and-let-live fashion, without antagonizing anyone.

The easiest way is to simply outsource the job. Make some arrangements with another cake shop that does not mind catering same-sex weddings, then simply let all customers know that any personalized cake order may be filled by that shop. The owners of the original cake shop would then take the order from the same-sex couple, and hand off the job to the other shop. The customers won't even have to know why this happened. The cake shop wouldn't have to cater a same-sex wedding, and the same-sex couple gets their cake without a hitch.

What if the same-sex couple were to insist on the order being filled by the original cake shop? I think this is an unreasonable demand, for multiple reasons. First, it seems likely that the motivation behind such a demand is "We want to violate your conscience", and not "we want equal accommodation". I am against motivations like these, which seeks to forcefully restrict the freedom of others. As long as the service and the customer experience is not meaningfully different between homosexual and heterosexual couples, the customer's rights have been satisfied and they do not get to furthermore demand that the inner workings of the business itself must conform to their ideology. In addition, such a demand would suggest that the cake shop is not really a public accommodation - that they are more like an artist with a unique, singular talent whom the couple is commissioning for a new project. And of course, the artist is free to accept or reject any new projects in such cases.

On the other hand, what if the cake shop were adamant in not serving the same-sex couple, in any way? This, too, is unreasonable. This position may look like they're saying "we want to make your wedding difficult" rather than "we want to obey our conscience". The fact of the matter is that the cake shop, by refusing to serve the same-sex couple, did cause them some amount of actual inconvenience. They wasted their customer's time and nullified their efforts. This is an actual, material harm that they caused to the couple, and it must be compensated for.

What would be the right amount of compensation in such cases? This, too, can be framed in terms of the principles listed at the beginning: the cake shop has the right to free exercise of their religion and the same-sex couple has the right to equal accommodation. So, if the cake shop has not made any previous outsourcing arrangements, or if their beliefs are so rigid that they cannot even bear to take an order from the same-sex couple, what should happen? The answer is straightforward, at least in theory: the couple should receive enough compensation to restore their experience to be on par with "equal accommodation".

Note that this is a second-best solution, after the "outsourcing" solution mentioned above. Because it is a second-best solution, where the cake shop's demands are higher, the implementation will be much messier and the compensation to the couple must be correspondingly higher. To determine the appropriate level of compensation - enough to make up for the couple's time and effort and achieve "equal accommodation" - let us consider the following two scenarios:

Scenario 1: you walk into a cake shop, then order a cake without any problems. 

Scenario 2: you walk into a cake shop, receive X dollars, and are turned away. You then order the cake from elsewhere.

The value of X that makes us equally likely to choose either scenario is the proper compensation. My gut feeling on this is that about $60 should be sufficient to cover most cases. Of course, that value is subject to refinement pending further consideration.

It's important to note that the same-sex couple doesn't simply get to choose their own value of X, as that obviously has a massive potential for abuse. X should therefore be based on what the population, as a whole, would choose in such scenarios. Also note that this solution assumes a civil business-customer interaction: words like "bigot", "abomination", or "homophobe" are assumed to have not been thrown around. If they were, that could be handled separately. Lastly, the same-sex couple here is being compensated for their lost time and energy, and not for their hurt feelings beyond simply being turned away. They do not receive any compensation for being offended at the beliefs of the cake shop owners, no more than the cake shop owners receive any compensation for for being offended that two people of the same sex should be getting married. Each party believes the other is wrong; but neither gets to impose their beliefs on the other, and both get to preserve their core identities. Truly, each may say to the other, "we're here, we're queer (from your perspective), get used to it".

If I were the dictator of Oregon and this case came before me, I would rule in favor of the same-sex couple, and order the cake shop to pay about $600 to the couple as compensation for damages (the tenfold increase from $60 is due to the fact that the state had to step in and force the transaction). I would then expand the scope of this decision by turning the case into a class-action suit, allowing any same-sex couple who can demonstrate that they had been similarly discriminated against to receive their $600 from their respective cake shops. Lastly, I would force such cake shops to implement the "outsourcing" solution. Alternatively, these cake shops may issue coupons for $60 off on wedding cakes from other nearby shops to any same-sex couple they turn away. The original cake shop would be responsible for negotiating and implementing this coupon system with the other shops.

The details of that "$60" solution can certainly be improved with more input from better businessmen and lawyers than I. However, the main point is that for both the "outsourcing" and the "$60" solution, the rights of both the cake shop and the same-sex couple can be preserved. The "outsourcing" solution is simple and fair. Even if it comes to the "$60" solution, the two parties can get along with minimal antagonism and with their core identities and rights intact. Both solutions achieve balance, and are vastly to be preferred over any scenario where one party simply imposes its will on the other.

As a final test, let's think about how these solutions work when the identities have been switched around. What if a Christian organization asked a gay-owned cake shop to put a Bible verse - say, Leviticus 20:13 - on a cake? Or what if an interracial couple asked a racist cake shop to make their wedding cake? How about if a white supremacist couple asked a black cake shop owner to write "for the propagation of the superior Aryan race" on their wedding cake? What about when a Buddhist temple wants a swastika-shaped cake from a Jewish cake shop? Can my proposed solutions above handle these cases equally well?

Think through these test scenarios, and consider how the two solutions would be implemented in each case. You'll see that the "outsourcing" solution handles all these cases with no conflict and protects the core identities of all involved parties. It's important to note that it does so completely independent of the moral correctness of any of the parties, which is a good sign. Even the "$60" solution minimizes antagonism and prevents one party from simply trampling over the rights of the other - again independent of the moral correctness of the parties involved.

Of course, nothing like my solutions happened in real life. The same-sex couple was simply turned away from "Sweet Cakes by Melissa" (sigh...), then the court hit the business with a crushing $135,000 fine (arg!). The cake shop then raised over $100,000 in an online campaign before that campaign was shut down (what?), and the owners have stated that they will contest the decision against them. I still have hope that all these one-sided efforts might cancel out to restore balance in our society, but real life continues to worry me.

Next week, we'll look at one more real-life case.


You may next want to read:
Religious freedom and religious accommodations (Part 5) (Next post of this series)
Religious freedom and religious accommodations (Part 3)
Human laws, natural laws, and the Fourth of July
Another post, from the table of contents

Show/hide comments(1 Comment)

One comment on “Religious freedom and religious accommodations (Part 4)”

  1. I disagree with this conclusion, actually, based on one other fact: that any business owner should be allowed to refuse service to anyone, for any reason. You'll find plenty of examples on NotAlwaysRight.com and similar sites where someone is unfairly rude to the staff at some shop, and as a result gets kicked out. That should be perfectly acceptable, as should refusing service for other reasons.

    If you're looking for a cake for your wedding, and you inquire at one shop and are quoted a price that's twice what you're willing to pay, should you be compensated for your loss of time? No. You simply walk out and go to another cake shop. Same if they aren't set up to make gluten-free cakes, or if they can't accommodate your precise icing colour request, or any other issue. You shop around. If the owner refuses you service for whatever reason, you take your custom to another place of business. Doesn't matter whether he's being unfairly bigoted ("interracial marriages are just WRONG") or more reasonable ("no I will not make a swastika cake"), you just go somewhere else. There shouldn't need to be any compensation here.

    Your logic is reasonable, but when you add in an additional fact, the conclusion can change (as you said yourself in the previous post). Nobody should be forced to do business with anyone.

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