Warning: count(): Parameter must be an array or an object that implements Countable in /home/areasonablethoug/public_html/wp-includes/post-template.php on line 284

Warning: count(): Parameter must be an array or an object that implements Countable in /home/areasonablethoug/public_html/wp-includes/post-template.php on line 284

Warning: count(): Parameter must be an array or an object that implements Countable in /home/areasonablethoug/public_html/wp-includes/post-template.php on line 284

Warning: count(): Parameter must be an array or an object that implements Countable in /home/areasonablethoug/public_html/wp-includes/post-template.php on line 284

To bake or not to bake

A friend of mine recently asked my opinion on a story about a Christian couple who were sued for refusing to serve a same-sex couple in Oregan. The original article provided for comment is here. The article seemed subtly one-sided to me in that it questioned the legitimacy of the decision without providing supporting arguments. I don’t resent journalists having an opinion on the stories they cover, but do feel they should at least present both sides of the argument.

In the case of the CBN article, they fail to mention the “Oregon Equality Act of 2007” which states, “Oregonians may not be denied service based on sexual orientation or gender identity. The law provides an exemption for religious organizations and schools, but does not allow private businesses to discriminate based on sexual orientation.” They also implied a violation of the couples right’s with regards to freedom of speech with, ” The official then ordered the owners of Sweet Cakes by Melissa not to speak publicly about their conscientous decision to follow their religious beliefs by not baking any cakes for same-sex weddings.” In fact, the couple were only prevent from claiming they won’t serve gays (because not serving people on the basis of sexual orientation is illegal in Oregan), NOT from sharing their opinion. This article covers the same story with a slightly different slant.

In that context, the interpretation is actually quite simple – break the law, pay the fine.

But that was merely a bit of detective work, and hardly the opinion I was asked for. Even if an interpretation of this story is simplified by law, there is a wider issue worth discussing. Certainly we South Africans are familiar with stories of discrimination on the basis of race and sexual orientation. Laws are not intrinsically good or bad, and offer no moral explanations.

Right of admission reserved

In theory, I support the ‘right of admission reserved’ for non-essential services. That is to say, every person has a right to access education, medical services, legal services, and so forth. Beyond that, I feel that businesses and institutions should be able to serve who they like – economics and public opinion will determine the success of their decisions. Such institutions exist today, albeit according to rules that seem haphazard – clubs for over and under 23’s, gay bars, black and Jewish business councils, insurance companies for women, various clubs, religious institutions, and much more. Some of them restrict membership outright based on…something…while others merely discourage attendance by anything other than their target group.

While unity is a good thing and the ability of different types of people to get along is to be admired, there is a place – I believe – for focus groups. They always say that healthy married couples should take the time to do things apart, so probably it’s the same for society. Making it illegal to discriminate / distinguish between people for the purposes of membership has an overall negative effect on the entrepreneurial potential of society.

I think that refusing to serve people based on race or sexual orientation is a distasteful expression of that particular principle, but one sometimes has to take the good with the bad. The distasteful flip side to making all forms of discrimination illegal is the implication for freedom of speech, entrepreneurship and punitive legal ugliness (such as suing  a bar for refusing me access on ladies night, to use a completely arbitrary example).

Granting businesses the right to serve who they like would not, of course, grant them protection from criticism of their decision, which would also limit some of the more abhorrent variations. Barring people below (or above) a certain age from certain social events is a form of discrimination unlikely to attract much criticism, but refusing to host gay weddings at a Cape Town wedding venue will certainly wreak havoc with your business and supply chain both.

Come to think of it, nobody has mentioned why a gay couple would want to eat a cake baked by someone who considers them an abomination unto the lord. If nothing else, allowing businesses their right to choose who to serve (and to advertise that preference) significantly decreases my risk of ingesting unwanted elements (even as a straight person attending a gay wedding). I know, I know – it’s about the principle. That was only a half-serious thought.

On the other hand…

It’s been said that, “in theory, theory is the same as practice, but in practice, it is not so.” In the same way, the ‘right of admission reserved’ principle doesn’t always work out in practice. Certainly, in areas where bigotry has a monopoly, it may well be necessary for anti-discrimination legislation such as exists in Oregon to break the monopoly. For economics and public opinion to successfully determine the success of discriminatory policies in a realistic space of time requires a level playing field.

As has been pointed out in the original location, it also doesn’t work on a small scale where the available services are limited. You could counter-argue (as I jokingly did) that that isn’t much different from when those services aren’t available at all, but when the only cake shop in the town you’ve been born in won’t serve you, that’s rough. The “you don’t have to go there if you don’t like it” doesn’t really hold when you start there in the first place.

Affirmative action is another form of bigotry-monopoly-breaking legislation. While there are many criticisms that may be levelled at it’s application in the South African context, it is based on a sound principle. That is, that the South African business market was not (and is not) a level playing field. All else being equal (which it’s not), people are more likely to hire people who are similar to them than they are to hire people who aren’t. So if the majority of influential people are white males (which they still are), those white males are more likely to other hire white males, unless you introduce a counter-incentive.

Similarly, if the majority of people in a specific location are bigots, they will tend to remain bigoted (by making people they don’t like feel unwelcome until they go away) unless you provide sufficient incentive to break that monopoly.

Finally, the definition of non-essential services (which may not discriminate) might be difficult to determine. Employment can be reasonably argued to be an essential service, but then you have the irony that business have to hire guy people but not serve them.

Irony – we’re ALL a unique snowflake

The world is more interesting with uniqueness. One “solution” to our differences is to stir everything up to the point where there there are no real differences – same religion, same colour, same philosophies. The solution I prefer is to have a situation where differences exist and are safe from one another. That involves allowing a great deal of freedom in terms of what you’re allowed to believe, but creating some restrictions on the way in which you’re allowed to act on those beliefs. Have your white straight pride parade, if you like. But rot in jail if you burn down a black church.

But that may be idealistic, at least the way the world works currently.

{ 9 comments… add one }

  • Elmari 8 July 2015, 9:50 am

    What I don’t understand, is why would you refuse to give lesbians cake? We invented cake for crying out loud!

  • Chris 8 July 2015, 9:54 am

    What I don’t understand, by that account, is why lesbians would settle for a cake baked by a straight person! But no, I don’t understand it either.

    • Elmari 8 July 2015, 10:02 am

      Cake is cake, we don’t discriminate.

  • Octavo 8 July 2015, 12:17 pm

    I think for me, a difference you’ve failed to highlight is that you’re comparing social organisations, councils, clubs and membership based non-profits with a specifically for-profit business venture. As an advocacy group or similar, feel free to espouse whatever distasteful opinions you wish, but once you enter the arena of business, be prepared to lay down your personal opinions.

    The only real example you listed struck me are bars with a no-under 23’s rule. I’m afraid I don’t really have a good answer for that one, although I hardly think it can claim the same sort of moral principle as refusing gays service.

    • Chris 8 July 2015, 2:06 pm

      There is indeed a distinction between NPOs and business ventures – maybe you’re on to something – but it isn’t clear to me why the profit distinction covers an organisations right to distasteful opinions. Discrimination can be bad for business, of course, but if you want to put your own cake shop out of business, you should be allowed to.

      You should be allowed to make bad business decisions, that is, not necessarily to specifically discriminate – I’m not advocating ‘right of admission reserved’, only considering it.

      I would take far more exception to a health NPO refusing to treat gay patients than to a cake shop refusing to supply cake for a gay wedding, though both are reprehensible.

  • Octavo 10 July 2015, 9:44 am

    I think it comes down to just how much faith you have in pure capitalism. Libertarians and free-market types like to speak about “the invisible hand of the market” and make arguments similar to the above. Businesses that discriminate will lose customers and the invisible hand of the market will fix all evils.

    I’m just not that optimistic about human nature and am quite happy with a legislative solution that prevents discrimination. I think we can agree that monopolies are bad(tm) and we accept legislation that infringes all-out capitalism in order to prevent monopolies from forming. I think the same thing is necessary and desirable when it comes to discrimination.

    • Chris 10 July 2015, 12:21 pm

      Your use of the monopoly example inspires some intriguing ideas relating to systems and whether simple forces acting on those systems are stabilising or destabilising. I can see the ideas expanding to fill an entire post of their own, but briefly: whether specific legislation is necessary or valuable depends on the exact configuration of that system.

      This blog explores the broader principles of systems, and questions the governing assumptions (and when assumptions may cease to be valid). But one must always ultimately be practical in the application of principles in the present. Thus even if my intention is not to be specific, your specific criticism is welcome.

      As for your point, in practice I agree, for the foreseeable future at least. Bigotry is often GOOD business (when the majority of your customer base shares your bigotry). Maybe we can do away with the anti-discrimination legislation “in theory”, but it doesn’t appear to be viable any time soon.

  • Hermann 10 July 2015, 10:52 am

    Some form of “discrimination” always existed, exists and will exist whether or not we like it or not. “Right of Admission” may be one form to exclude some people but who applies the criteria for deciding who the “right person for admission” is. Pretty judgemental!
    If they state they criteria in advance like “no shorts or T-shirts” or minimum R50 per person per meal (even if you just have a coffee) it is a pretty clear policy. Barring admission on sexual orientation, religion or even a minimum age becomes tricky. Are you now discriminating? How to you actually establish if a couple is gay in public? Do these people behave differently to other patrons?
    Some clubs or social groups retain exclusivity by charging high annual membership fees. Is that discriminatory against the poorer population?
    Maybe it is not “discrimination” that is the problem but the people who feel somehow aggrieved by so called discriminatory practices. Discrimination in general is WRONG! But until one can come to a very clear definition of that word it is difficult to avoid.
    If you know up front if you are not wanted why make an issue of it anyway? But then again we live in an imperfect world.

    • Chris 10 July 2015, 1:14 pm

      If we establish that it is valuable to prevent discrimination (I think we have, broadly), that does indeed still leave the complicated issues of how to prevent it, and how to distinguish when it isn’t harmful.

      There are ways to circumvent rules against discrimination, as you point out. You can’t stop gay people from buying your cakes, but you can be so rude to them they won’t come back (or deliver a cake that’s barely acceptable). You can keep “poor” people out by making the entry fee too high. You can keep your French club exclusive by refusing to speak anything but French (which people probably wouldn’t be aggrieved by, either).

      And there are forms of discrimination which qualify semantically as discrimination, but are acceptable. Sick people can’t donate blood, and that’s fine. Healthy gay men couldn’t, and that wasn’t. Under 23’s can’t go to certain clubs, and that’s a grey area but probably not harmful. Blind people can’t operate heavy machines, and that’s fine. Affirmative action discriminates, and that’s REALLY a grey area – it’s a bit like chemotherapy where you’re doing a bad thing but in principle for a good cause.

      And there are probably a lot of grey areas we have to figure out.

      And then the answer is that society is learning. Cake shops certainly have.

Leave a Comment

%d bloggers like this: