Posted by: dacalu | 11 June 2018

Service to All: America

A discussion has opened in America about the extent of religious liberty. I think it’s tremendously important. And, I think it’s difficult. That’s why I’ve tried to set forth my own position here. It rests on my beliefs about personal responsibility and social accountability. In that sense, I believe it is a profoundly conservative argument. It is also informed by Christian theology, but that must wait for a second post. For now, the American argument.

In the US, we have a strong commitment to religious freedom, enshrined in the first clause of the First Amendment of the Constitution. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” In the words of Thomas Jefferson:

“The rights of conscience we never submitted, we could not submit. We are answerable for them to our God. The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” Notes on the State of Virginia

Jefferson’s statement makes clear that religious liberties may be limited when they run into the liberties of others, even their economic interests. We must come to terms with the relationship between religious and financial liberty – as is made clear in prohibitions of alcohol, drugs, gambling, and prostitution. We regularly stop people from economic activity in areas deemed immoral or, at the very least, not in the public interest.

Many economic activities lead to a limitation of religious freedom. A religious pacifist (e.g., a Quaker) may refuse to enlist in the Army. She might even choose to leave the army. What she cannot do is remain in the army and draw benefits from that relationship (pay, billeting, …) and at the same time disobey orders due to her pacifism. And, it must be noted, her pacifism must be broad and clear. She cannot pick and choose when to be pacifist. I have great respect for the pacifist and great respect for the soldier. I have little respect for those who claim to be both.

A man who believes it wrong to drink alcohol (e.g., Methodist, traditionally) may refuse a job as a bartender. He may choose to quit such a job. What he may not do is remain a bartender and refuse to serve drinks. More to the point, he cannot claim a religious objection to serving some customers and not others. He cannot choose when to be a teetotaler.

The current division in the US arises between those who see business as a personal right and those who see it as a social responsibility. I see it as a social responsibility. It comes with limitations.

Our economic freedom neither is nor should be absolute. It is limited by the economic interests of others. We believe that no-one should be prevented from opening a business because of their religion (e.g., Jews). Nor should they be turned away from the businesses of others, effectively stopping them from their own economic endeavors.

Customers can discriminate; providers cannot. If you provide a service, you must provide it to all comers (under the law). You can choose not to provide a service, or you can choose to provide it to everyone. What you cannot do is provide it to some but not others. Your objection must be broad and clear.

A business must be blind to the customer. They must choose their services before deciding who may and may not receive them. A baker may, for any reason, refuse to provide cakes with two grooms on top, regardless of who asks for it. But, if they provide unadorned (or generically adorned) cakes, they must provide them to whoever is willing to pay.

1) I don’t believe businesses should have the right to freedom of religion. Alas, the Supreme Court does, so they do under US law. That said, their freedom of religion ends where the religious and economic freedoms of others begin. Right now, we’re figuring out how to draw that line.
2) When you charge money for religious services, they become economic services. I say, don’t do it. I can marry whom I please and I will not charge money for it. Religions get around this with donations, I’m happy with this arrangement. Significantly, it means that the donation goes to a religious charity and is subject to the relevant laws. I’d be delighted to hear about a bakery run as a religious charity. Religious liberty is not in question; economic liberty is.
3) In the case of Masterpiece Cakeshop, Ltd., et al. v. Colorado Civil Rights Commission et al., the US Supreme Court ruled that the CCRC had, in the treatment of the complaint, discriminated with regard to the religion of the baker. They did not rule on whether the couple in the case would have had the right to service had the CCRC acted in accordance with the law. In other words, they punted. The ruling notes, in alignment with my own thoughts, that, “Colorado law can protect gay persons in acquiring products and services on the same terms and conditions as are offered to other members of the public.” It is worth noting that court allows such a law to be constitutional; it does not say that gay persons have such a right beyond the reach of Colorado law. I believe the latter in addition to the former. For the record, the ruling makes clear that the baker’s objection was to the use toward which the cake would be put, not the properties of the cake, itself. He would not sell the couple a wedding cake such as he would provide to a same-sex couple. No indication of gender was requested for the cake.
4) Religious liberties may be limited in the described fashion. From the same case: “The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws.” “while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”
5) Masterpiece Cakeshop’s actions were consistently discriminatory based on intended use, not the specific goods provided. “The investigator found that ‘on multiple occasions,’ Phillips ‘turned away potential customers on the basis of their sexual orientation, stating that he could not create a cake for a same-sex wedding ceremony or reception’ because his religious beliefs prohibited it and because the potential customers ‘were doing something illegal’ at that time.” “Phillips’ shop had refused to sell cupcakes to a lesbian couple for their commitment celebration” The justices did note that same-sex weddings were not yet legal at the time of the events in question.
6) The baker argued that artistic expression in baking constitutes a form of protected free speech. The Supreme Court agreed with lower courts that this was not the case under Colorado law. Interestingly, the opinions written by Kagan and Gorsuch pry into this question. Those interested in the debate might enjoy reading them. I agree with Kagan.


  1. […] my last post, I argued from American law and civil ethics that businesses should provide their services to all […]

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