[UPDATE: Apparently, the “news story” that prompted this post is a fake. In that case, I want to thank the hoaxers for inadvertently sparking a useful discussion—nothing in my post is dependent on the factual nature of the story. I wasn’t the only one fooled, and I originally noted the links on reliable sites. On the other hand, to hell with people who plant fake stories that are not obviously tongue in cheek or satirical: it’s a despicable practice, and abuse of the web, and right down there with public vandalism and creating computer viruses as unforgivable public conduct. I apologize to readers here for misidentifying a false story as true, but I’m not the unethical jerk involved. If anyone knows who that is, please forward their names. I have some choice words for them.]
As I wrote the first time I stuck my ethics big toe into this kind of controversy, I am conflicted over the current trend of forcing certain kinds of service providers to serve customers they just don’t feel like serving. I have consistently come down on the side of the rejected customer, even when the service, as in the case of bakeries and photography salons, edges perilously close to art. I think I am there still, but my resolve is weakening. I think. Let’s look at this again, in the context of the kind of recent case that always eventually occurs when one sits on the slippery slopes.
A three judge panel of a Georgia appellate court recently ruled in favor of Marshall Saxby, the Grand Wizard of a local KKK chapter, after he sued a local bakery for refusing to bake a cake for the KKK chapter’s annual birthday party. Elaine Bailey, who owns Bailey Bakeries, said she rejected the Klan its activities violated her religious beliefs, and Saxby claimed that Bailey’s refusal of service discriminated against his religious beliefs.
The difficulty with making an ethical call on this case and others like it (and sort of like it, arguably like it or a little bit like it) is that the crucial question in ethics analysis, “What’s going on here?” cannot be answered with certainty or clarity. There are ethical arguments and ethical principles, on both sides, making the issue an ethical conflict (rather than an ethical dilemma). In an ethical conflict, we must prioritize among important ethical principles that are opposing each other.
Let’s answer “What’s going on here?” in some of the various ways this case allows, as if only one of these ethical principles were in play:
- “A public accommodation is refusing to serve an American citizen because of that citizen’s religious beliefs.” Ethical value: Citizenship. A nation cannot survive if public accommodations discriminate and withhold their services according to race, ethnic origin, sexual orientation or religious beliefs. VERDICT: UNETHICAL and ILLEGAL
- ” An artist is being forced to create a work of art for a customer she does not like.” Ethical Values: Autonomy, Liberty, Freedom of Expression, Freedom of Association No one should be forced to express themselves or associate with others if they do not choose to. VERDICT: UNETHICAL and ILLEGAL
- “An artist chooses to discriminate against a customer because of that citizen’s religious beliefs.” Ethical Values: Autonomy, Liberty, Freedom of Expression, Freedom of Association, Fairness, Respect, Citizenship, The Golden Rule. Americans should be tolerant of the beliefs of others. VERDICT: UNETHICAL but LEGAL
- “An artist chooses to discriminate against a customer because of the customer’s political views.” Ethical Values: Autonomy, Liberty, Freedom of Expression, Freedom of Association, Fairness, Respect, Citizenship,The Golden Rule. Americans should not punish fellow citizens for political or philosophical views. VERDICT: UNETHICAL but LEGAL
- “A public accommodation is refusing to serve an American citizen because of that citizen’s perceived obnoxious, harmful or offensive conduct.” Ethical values: Citizenship, Autonomy, Responsibility (for upholding social norms, Fairness, Diversity, Respect PRO: A society should bolster its social norms by shunning those who reject them. CON: A democratic society must minimally accommodate the societal needs of citizens who engage in unpopular but legal conduct. VERDICT: ????
I could write more, but my brain hurts. Within these answers are many other complex judgment calls. Is a bakery really engaged in art? A photographer? A bridal shop? A florist? Shouldn’t public accommodations only be those supplying essential services, like food or medicine? Who decides what’s essential? Where does speech stop and conduct begin? If it’s OK to discriminate against racists, why not meat-eaters? Republicans? Global warming skeptics? Yale grads? Yankee fans? What are the responsibilities of a citizen and a member of a community? Shouldn’t a store owner be able to refuse service to a jerk? Why can’t he have his own definition of jerk? What if he thinks Catholics are jerks? Jews? Republicans? Can America really work if we allow citizens to band together and refuse to engage in commerce with those they disagree with politically, ethically, or morally? Where should the law be involved, and when is it a matter of ethics only?
I’ve worked through these issues in many forms on this blog, trying to maintain a consistent set of standards. I believe that the law must require public accommodations, like pharmacies, to serve all law-abiding citizens, regardless of “matters of conscience” for the proprietor that would result in discrimination on the basis of an individual’s beliefs, gender or status. I believe it is unethical for such establishments to withhold service from anyone, for any reason, as long as they comport themselves properly while there. I believe that professions and artists should choose to provide their services to as wide a population as possible, and should only refuse, if at all, when they feel their services are being used to harm others. I do not believe that the law should dictate those choices. I believe that artists should have complete discretion regarding whose money they accept, but that refusing to work for a law-abiding citizen based on the artist’s biases is unethical, while choosing to ignore a law-abiding citizen’s beliefs and controversial conduct never is.
I believe that commercial boycotts of groups and citizens, like organized citizen or group boycotts of commercial entities, are unethical: coercive, divisive, undemocratic, unfair, and irresponsible. I believe that if a merchant has the legal option of refusing service to a group like the Klan, and is legitimately worried that his association with a group that is reviled within the community will harm his business and relationship to the community, he would not be unethical in withholding his services in that instance, and the same would be true of an artist.
This is, in short, a very difficult utilitarian calculation involving law, ethics, and considerations regarding how to strengthen society, and keep it healthy.
My view on the KKK case is this, based on the statements above: I don’t believe the law should force a bakery to decorate a wedding cake for the Klan. I believe that the law should require the bakery to sell the Klan the same cakes it sells everyone else. I believe that there is no safe or reasonable way to ethically approve of a proprietor’s refusal to serve the Klan that would not require approving shop-by-shop discrimination against progressives, conservatives, strippers, radio talk show hosts and ethicists, and thus I believe that refusing to do business with the Klan when all they want is a birthday cake is….
Graphic: Tribune Herald