The News from Gridleyville

The controversy caused by Lorie Smith, an anti-gay Colorado website designer, has prompted me to think through my position on the issues she raises—issues that pit her religious beliefs against the rights of her (hypothetical) customers. Some of my liberal friends, predictably, have lined up against her. Though I’m way-left on the political spectrum, I don’t find the matter so simple.

To review the situation: Planning to expand her business to include wedding websites, Smith has preemptively sued the state to prevent it from charging her with discrimination if she declines to serve gay couples on account of her religious principles. The U.S. Supreme Court has heard the case and is expected to rule by the end of its current term.

Given Colorado’s actions in the 2018 Masterpiece Cakeshop case, maybe Smith has grounds for worry. In the Masterpiece case, the Colorado Civil Rights Commission ruled against a baker who refused to design a wedding cake for a gay couple, and the case went all the way to the U.S. Supreme Court, which decided in the baker’s favor.

Of course there’s a large element of political grandstanding in cases like these. They’re based on situations that would never occur in daily life. Any self-respecting gay couple wouldn’t let that baker anywhere near their cake, nor would they let Lorie Smith have a byte of their website.

Still, in spite of the political flapdoodle, cases that pit one person’s rights and moral/religious beliefs against another’s deserve some thought. Imagine a gynecologist who believes that abortion is murder. Would you force her or him to perform an abortion when neither the woman’s nor fetus’s health or welfare demanded it? I wouldn’t, and most Americans probably agree with me on that. Yet if the woman’s life was in danger, the operation had to be done immediately, and no other doctor was available, my opinion would change.

So where do we draw the line? How do we balance the conflicting rights and moralities?

My thinking has coalesced into what could be called a three-pronged test, a term with a nice legal ring to it. Perhaps because they have spiky personalities, judges favor tests with prongs.

Let’s call the parties the Provider and the Customer. Here are the three aspects of the test:

1. The nature of the moral/religious objection. Is the Provider’s disapproval of the Customer based on the latter’s behavior or on unchangeable attributes? It could be that Ms. Smith and some of her right-wing supporters don’t like serving African Americans, but they have enough sense to realize they’d get no sympathy for such a stance, even if they claimed a religious basis for it. People can’t choose their race or skin color. By targeting gays, conservatives are picking a group that engages in behavior they condemn. Yes, LGBTQ folks contend, with reason, that they are born with their gender and sexual preferences, but they don’t have to get married, nor do they even have to have sex. It is, whether we progressives like it or not, a question of their behavior. Passing this behavior test is a precondition for moving on to prongs 2 and 3.

2. The Provider’s degree of involvement with the Customer.

2a. Is the Provider’s involvement passive or active? Jack Phillips, the cakeshop owner, could have no legitimate objection if a gay couple came into his shop and bought a cake from the display case. He probably wouldn’t know they were gay, and even if they identified as such and smooched in front of him, his involvement with them would be minimal: lifting the cake from the case, boxing it, ringing up the sale. In contrast, when they asked him to design a custom cake for them and have it ready on a certain day, they were demanding he take an active role in their wedding, even a “creative” one.

2b. If the involvement is active, to what degree does it involve direct participation in the disapproved behavior? Imagine that Phillips had been asked not just to design and bake the wedding cake in the back room of his shop, but to help cater the event—to come out to the wedding venue, preside over the ceremonial slicing of the cake, and serve the guests? That would be a greater degree of involvement in celebrating an action he considered immoral. An even better example is a wedding photographer who interacts personally and repeatedly with the couple and their relatives and guests.

At step 2a, if the involvement is active rather than passive, I begin to favor the Provider’s point of view, and at 2b I definitely side with him or her. In my daily work, I offer book production services to clients of various backgrounds. If Paul Manafort asked me to edit, design, and print his next memoir, which I suppose should be called A Sleazeball’s Campaign Against Truth and Decency, I’d refuse him on moral grounds. Luckily, sleazeballs are not a protected class, so the law couldn’t compel me.

3. The extent to which the Provider’s service is vital to the Customer’s well-being. I suppose most people take wedding cakes and websites far more seriously than I do. Frankly, I consider them trivial, and my own wedding was the opposite of ceremonial. We didn’t have a cake or website, and we’ve done fine without. Since services like that are not vital—and, besides, are available from multiple vendors—I think the Provider should be free to refuse them even for relatively minor reasons. The opposite would be true of the gynecologist mentioned earlier—the only doctor available when the patient’s life is at stake. In that case, the Customer’s great need should prevail over the Provider’s sense of morality.

Finally, there’s an underlying thought at work here. Most of us get very annoyed when government regulations restrict us personally. We especially hate bureaucrats and their nitpicking, irrational rules. Yet we don’t mind it much when the government restricts others. Let’s keep that in mind. Whatever we think of bigoted bakers and website designers, we should recall that they believe what they believe, and what a government can do to them it might possibly, under other circumstances, do to us.