Masterpiece Cakeshop Round 2: Let the Golden Rule Ring

Posted on ; Last updated on April 10, 2023
Martin Luther King Jr. at the Lincoln Memorial on Aug. 28, 1963

When we allow freedom ring,
when we let it ring from every village and every hamlet, from every state and every city,
we will be able to speed up that day when all of God’s children,
Black men and white men, Jews and Gentiles, Protestants and Catholics,
will be able to join hands and sing in the words of the old Negro spiritual:
Free at last. Free at last. Thank God Almighty, we are free at last.

In the last post, I commented on a First Amendment case pending before the Supreme Court of the United States [1], and ventured to predict each Justice’s ruling. In this post, I’ll make bold to voice my own opinion.

It is written in the Gospels, “do to others what you would have them do to you”, and “You shall love your neighbour as yourself.” This is commonly know as the Golden Rule. It may not have the same resonance as freedom, but it might just be what is necessary to realize King’s dream, and do justice in cases where rights conflict with one another.

Freedom of Speech

Both sides agree that freedom of speech is a right protected by the Constitution, but disagree whether a wedding website constitutes speech.

The word “marriage” used to mean a union between a woman and a man, until about twenty years ago, when same-sex union began to be legalized in some countries in the western world. According to a Pew Research article published in 2019, a total of about 30 countries have legalized same-sex union, that is about 15% of all the countries in the world. In most part of the world, marriage still means a union between members of the opposite sex. For those who understand the word in its original sense, to apply the word marriage to same-sex union, is to distort speech, if not reality, just as it is nonsense to call a deer a horse, or black white.

A wedding is by definition a “marriage ceremony”, and a wedding website or a wedding cake is an explicit acknowledgement and/or celebration of a marriage ceremony. The petitioners in these Court cases are not willing to acknowledge that same-sex union constitutes marriage, and so refuse to make those particular types of products. By contrast, the services of caterers, florists, hairstylists, jewellers, plumbers and tailors typically do not constitute speech, as their services don’t convey anything meaningful and specific about the people being served or the event for which the service is provided, and can be employed in countless other venues.

A government has the authority to decide the legal status of conduct, but it doesn’t have authority to change the meaning of words. If a government compels people to use a word in a way that contradicts their understanding of its meaning, the government is compelling speech. Applying the Golden Rule, if we don’t want an Orwellian government that suppresses our speech, don’t suppress others.

Status and Conduct

St. Augustine writes that we ought to love the man but hate his sins. The petitioners argue that they accept and serve people with homosexual orientation, but reject homosexual conduct which they believe is sinful. The respondents argue that “status and conduct is inextricably intertwined”, and so “refusing to serve for same-sex marriages is discrimination against gays and lesbians”. This seems to me the crux of the problem.

For starters, status and conduct are different categories. It is a mistake to conflate the two. The same person can chose to act in different ways under different circumstances, to do good or to do evil, so his status as a human being is distinct from his conduct. This is so evident that further explanation is unnecessary.

Second, conflating status and conduct has dangerous practical consequences. The vast majority of people have a protected status of one kind or another. If conduct is inextricably intertwined with status, punishing criminal conduct would be unconstitutional. Conversely, racial profiling would be constitutional, because conduct of a small group could be legally attributed to a whole class of people. To quote the inspiring words of Martin Luther King Jr., “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” King clearly believes his status as a black man is distinct from his character or conduct, and is willing to be judged by the latter.

Applying the Golden Rule, we should grant others the same level of protection against discrimination that we would have ourselves. IF we want our conduct to be free from scrutiny and rejection, then let us grant others the same impunity; Otherwise, let us separate status from conduct.

Speech and Conduct

There are legitimate concerns and questions about where to draw the line between speech and conduct.

It is true that conduct often conveys a message. A key precedent of the Court is Rumsfeld vs Forum for Academic and Institutional Rights, Inc. (FAIR)[2]. If the impact on speech or implied message is only incidental to the service provided, e.g., providing a venue, the right to free speech is not violated. The service provider has ample opportunity to make his message, if any, explicit. By contrast, some conduct, such as burning a national flag, is speech protected by the First Amendment, because of its clear symbolic meaning. A wedding cake also has a clear symbolic meaning. Compelling or suppressing this type of conduct directly and substantially compels or suppresses the speech.

Freedom of speech differs from freedom of religious exercise (or conscience). Even if a conduct does not constitute speech, it might still constitute exercise of religion. For example, refusal to participate in production of weapons may not constitute pacifist (religious) speech, but the Court has recognized that it is protected by the free exercise clause.

Freedom of Association vs Discrimination

My personal understanding of freedom of association is that the government does not have the authority to compel any individual (or group) to associate with other people contrary to their own interests or preferences. For example, people are, or should be, free to form clubs whose membership is limited to one sex, race, national origin, religion or political party.

A nation may be considered a very large association, where each member has the same right and access as every other member. This is the basis of the public accommodation laws, which require facilities or businesses open to the public, to provide the same service to all people, regardless of sex, ethnicity, race or religion. In Katzenbach v. McClung (Ollie’s Barbecue)[3], where a white restaurant owner is required to serve black people inside their establishment, the Court ruled that racial discrimination affected interstate commerce. This is consistent with the reciprocal nature of public accommodation, as the business receives benefits, products and services from all, it ought to offer its services and products to all. Therefore, discrimination in public accommodation is not only illegal, but also irrational.

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