“Happy Birthday to You! Happy Birthday to You! Happy Birthday, Dear Racists…”
[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….
….unethical.
________________________
Sources: Popehat, Tribune Herald, Desert News
Graphic: Tribune Herald
Ethics Alarms 
Jack,
Slippery slopes indeed, though well-traversed. I probably missed it, but I’d love to hear you say more about the “What’s going on here?” methodology. It’s new to me and sounds very sensible.
BTW where does this analysis come down on hospitals performing abortions and pharmacists filling morning-after pill prescriptions?
Oh, I’ve hit that more than once: the dreaded conscience clauses. Veto: https://ethicsalarms.com/2011/02/19/good-bye-and-good-riddance-to-bushs-unethical-conscience-clause/
Yeah, because fuck the catholic church and catholic hospitals, amirite?
No, you’re wrong. Catholics can worship as they please, but if they run hospitals, they have to treat everybody, and they have to meet the same obligations as employers as everyone else. Ditto Jesuit universities—I went to one, you know.. Nothing says they have to run hospitals or schools.
Appropriate response Jack… Your link is for the Photographer case, “recently ruled in favor of Marshall Saxby”
Can’t read the details, however, if the baker was asked to decorate a cake that she found offensive, does the baker have the right to refuse a service, since this is a commercial enterprise, not a free speech situation?
As a more entertaining example, should a baker be allowed to refuse to the business from someone throwing a bachelorette party, who wants a biologically correct cake prepared? There are religious grounds for refusing that business as well.
That’s an easy one, though, unless the store routinely makes them for other customers. You can’t make an artist paint you in the nude, either.
I fixed that–it’s the right link now.
I covered your question. If its a generic cake, it’s commerce; if there’s customized decoration involved, I’d say it’s art.
If the baker advertises custom birthday cakes, then that is commerce. There is no first amendment issue.
It’s a close call that would have to be the topic of litigation. Cake decoration is art in my book, like interior decorating or portrait painting. Or photography.
If a photographer has to take pictures at a gay wedding despite their religious beliefs, then a cake company has to decorate a cake for a bunch of racists.
Because even more important than the made up right of marriage are the ACTUAL rights of free assembly and speech.
Are you talking legal precedent or ethics? If you don’t make that distinction, then the comment is meaningless.
Rights and ethics are different things altogether. Nowhere does the Constitution guarantee us ethical treatment.
It certainly is designed to guarantee us as ethical a treatment from the government as possible.
Thank you, Captain Obvious! And where in the post did I suggest otherwise? Respecting rights, however, and not infringing on them, IS ethical conduct.
Well they can get a plain birthday cake from the case and it unethical to do anything to it even as mad as you would be at being forced to do it. And on the charitable side, the cake could sometimes be for a kid who has no choice in who their parents are and deserves a birthday cake too.
It would be very hard to resist a tit for tat bringing of a unacceptable crowd to the customer’s place of business though when there are other places to get cake.
This topic leaves my head spinning.
So many different ways to look at it.
Then you have no consistency. You have twisted into knots to excuse using the courts to force a business to provide their services to gays (classically a group people like to support) and yet not support using the courts to do the same for the KKK (which people don’t tend to publicly help out, I wonder why).
There is no difference between a gay wedding or a Klan event (and frankly, I would find more constitutional support for the Klan event).
This is the logical extension of those other cases. If you use the law to force a business to do something for a group they have a strong moral disagreement with, you have to then allow for the use of the law to force everyone to provide services. A gay couple would have to make cakes for a National Organization for Marriage/American Conservative Union party in honor of Cleta Mitchell, a black-owned store has to bake cakes for the Klan, and simpering pansies who enjoy giving all power and authority to the State has to make a cake for the NRA gathering.
This was inevitable, Jack. You supported it before, when it was a group that is a popular one to champion.
How odd that when it is a group that is universally reviled you find a way to backpedal and excuse not supporting them.
Wrong. The distinction is between the LAW requiring the selling of a generic cake (doing business and commerce) and forcing speech, or art, which is what decorating the cake is. The law is correct to say that a business should serve all paying customers. It cannot compel artistic expression on their behalf—but I think the ethical conduct is, in fact, to offer this as well if at all possible.
“Then you have no consistency. You have twisted into knots to excuse using the courts to force a business to provide their services to gays (classically a group people like to support) and yet not support using the courts to do the same for the KKK (which people don’t tend to publicly help out, I wonder why)”
Bull. It is unethical in both cases to withhold the art OR the service, but proper for the law to compel the service only (if the reason for the discrimination is race/region/gender), and whether it is a gay couple or the Klan makes no difference whatsoever, and should not.
Your support for the decision involving the wedding photographer tells me that the only difference is that you agree with gay marriage and don’t agree with the KKK.
That is fine, it is just inconsistent.
You are advocating using the law to enforce or support behavior you like, and that is absolutely antithetical to the concept of liberty. If you change the KKK article to be about gay marriage, you would support the law forcing compliance (I know this is true because you wrote about this exact situation and were very adamant that it was right and proper for the law to do so).
It is either improper for the law to compel service in all cases, or it is proper for the law to compel service. The second you start to pick and choose you admit to not actually caring about liberty, and only caring about what groups you support.
It’s NOT fine, and it isn’t inconsistent. I have stated in the blog—look it up—that it is unethical for bars to refuse to serve Republicans. It is also unethical for them to refuse to serve the clan, or the Westfield Baptist Church. Or gays. It is illegal fr them to refuse to serve Phelpsians for their religion, and unethical to refuse to serve them because of their conduct. It is illegal to refuse to serve gays because of their sexual orientation.
The law should not FORCE artists to create for those they don’t want to create for. It is unethical for them to discriminate. If you want to quibble over what’s an artist, swell–there’s room for disagreement.
The Klan’s beliefs are legal and Constitutionally protected, and public accommodations should not discriminate against them, and the law should not permit said discrimination.
No inconsistency whatsoever.
And yet you have argued precisely for such a thing.
That’s right, and I also linked to it in this post, and explained that I was increasingly uncomfortable with the conclusion in that piece. I have a right and a responsibility to refine my position on these gray area issues.
And, by the way, I did NOT: I wrote this…
“Legally, it is a more difficult question for me. Legal rulings have precedentiary effect, and one supporting Ingersoll and Freed could mean, to take one example, that singers who don’t approve of gay marriages could be forced to sing at them. Florists are perfectly positioned in the gray territory between a public accommodation, such as a restaurant or pharmacy, where society has a legitimate interest in restricting personal liberty to ensure equal access to the basics of life, and expressive or artistic pursuits that the law usually can’t compel. That gray area creates the slipperiest of slopes, which is why the betting is that this case will end up in the laps of nine U.S. Supreme Court Justices.”
If you read that as “arguing for”, your reading comprehension needs repair. That post is about ethics, and it is consistent.
I’m fairly certain that the KKK story is a fake.
Really? It fooled Popehat…at least I’m in good company. It is certainly a stupid story. it’s fakeness or not, fortunately, does not change anything in my post, ethics-wise.
It didn’t fool, it merely served to prove a point.
And Clark’s point is the same one I have always held to – it is not proper for the law to force a business to provide a service if the business absolutely does not agree with the aims/goals/message of those seeking service. He makes this point by using a story (false or not) about a group that 99% of us hate getting a ruling identical to one that a group that most support got, yet still serves to get a very different reaction – outrage for the KKK ruling, support and praise for the gay wedding rulings.
It fooled to make a point, but I repeat: to hell with them. They can make a point honestly and without starting rumors. It isn’t even a particularly coherent point.
They had an article about Nolan Ryan coming back to pitching in 2013… How could this site be anything BUT satirical?
If a post is not intrinsically humorous, it is deceptive. I don’t have time to do a truth check on every web site. Satchel Paige pitched in the majors when he was 63, I believe.
What about this one?
The Ku Klux Klan is a religion?
A bakery is a public conveyance? A public utility? It’s regulated?
If I’m a lawyer I have to represent anyone who asks me to? I’m like a city bus? I have to let anyone on who has the fare?
What about anti-trust law? This is the only bakery in town? This bakery controls the entire service area for bakeries.
What’s going on here? Have I stepped through the looking glass?
1. The religion angle is bizarre, and it came from the baker, who used that as her excuse not to serve jerks. Ethically, it makes no difference.
2. What does regulation have to do with it? A bakery is, the theory goes, like restaurant. Can’t exclude people for their color, origins, etc. Unfair. Good rule.
3. I didn’t say you HAD to represent everyone, I said the ethical conduct is to do so, and the long-standing ethics of the profession agree with me. Lawyers don’t judge. Judges judge.
4. The point is, it COULD be the only bakery/pharmacy/ hospital in town.
5. Civil rights? Community? Fairness? Tolerance? Kindness? Respect? The Golden Rule?
I wonder if some Black Muslim group came in and wanted a cake with a white devil on it whether this woman would have baked the cake 😉 .
I wonder if some Black Muslim group came in and wanted a cake with a white devil on it whether this woman would have baked the cake 😉 .
**************
Yes, and what if the cake lady’s rendition of a white devil ended up looking like the Easter Bunny?
Would the Black Muslims still have to pay for the cake?
heh heh
Why can’t any of these jackasses make their own cakes?
” 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”
Yes. There was recently one stating that dozens of whales had died from radiation poisoning and beached themselves at Fukushima, Japan. The writer of the article (“reporting from Fukushima”) used photos from a 2010 New Zealand beaching incident. The comment thread was full of hate for the Japanese, saying that they ‘deserved’ the earthquake, and wishing ‘more Japs would die’. When I provided information that the foreign reporter was likely not in Fukushima (as he used pics from another country) , that the event did not take place, the site regulars started in with ‘Can’t you take a joke?” “Can’t you see it’s a joke article to raise a point?”
Satire is understandable as such.
“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.”
Essentially, whatever the popular trends and passions of the day are what will govern the justifiable refusals of service and non-justifiable refusals of service. This little rationalization essentially says “during the period that discrimination against blacks was popular among the majority of members of the marketplace, then discrimination against blacks was ethical.”
Who decides what “legitimate worry” is? Either we accept that every member of the marketplace can refuse service to whom they feel presents a “legitimate worry” or we don’t. You’ve established a scenario that puts the onus on the market to decide what businesses are justified and what aren’t by saying “is legitimately worried that his association with a group that is reviled within the community”, while allowing there still to be a later judgment whether or not that decision is justifiable in the end. That leaves a ton of unease on the decision-makers part: whether or not their decisions will land them in court based solely on public opinion. That isn’t justice.
The other market-driven option, is the hyper-libertarian option, which at least doesn’t leave the businessman confused as to what decisions they are allowed or not allowed. In the hyper-libertarian option, sellers can refuse any service they feel they can risk in the market, and let the market forces work it out.
In both scenarios, the buyer still has unease as to their standing with a seller.
“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….
….unethical.”
“My view on the homosexual marriage case is this, based on the statements above: I don’t believe the law should force a florist to decorate a wedding for the homosexual couple. I believe that the law should require the florist to sell the couple the same flowers 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 homosexuals 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 homosexuals when all they want are some flowers is….
….unethical.”
So, which is it on the florist? Does she only have to provide flowers? Or is she compelled to handle the arrangements and decorations as well?
Or do we allow the marketplace to balance everything out? Which, given the sheer size of our market, we know it would.
It seems to me that art is too broad of a category anyway. Everyone’s profession to some extent or another is an art. Obviously some professions are more so. By extension, how one puts one’s profession on the marketplace is inevitably to a small degree, speech. To what extent can speech then be restricted? Obviously marketplace actions that harm other people must be.
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I would have baked a cake for the KKK dude….but I won’t tell you what would have been in that cake…and I would have charged him triple ’cause I would I told them “it’s all in the icing”….and certainly there would not have been the need for any lawyers, judges, or challenges to the Constitution and no witnesses…
It’s worth noting that the ruling in the Elane Photography case explicitly addressed this hypothetical:
I disagree with the Court – I think that photography is clearly an expressive act that deserves more first amendment protection than, say, running a grocery story or a hotel, and therefore Elane Photography should be free to turn down such clients.
I also think there’s “moral grandstanding” going on in the Elane Photography case, on both sides. No where does the Bible say that Christians have to refuse to do business with anyone who is a sinner; in fact, since Christians say that everyone is fallen, doing business in the world inevitably involves dealings with people who have sinned. Making a big deal out of refusing to photograph a same-sex commitment ceremony – or even to sub the work out to another photographer, as Elane Photography has done in the past with other jobs – has less to do with religion than with the egotistical desire to Make! A! Stand!
But on the other hand, if a photographer refuses to photograph your same-sex commitment ceremony, then it also smacks of Moral Grandstanding, or perhaps just Getting Even With The Bigots, to sue. They were not in a community where there was any lack of photographers willing and able to photograph same-sex ceremonies. No one actually wants to have a photographer at one’s wedding who is morally opposed to the entire thing. Much better to shrug it off (as painful as it really is to encounter prejudice), find a better photographer who wants the gig, and let all your friends and family know that if you love gay people, then Elane Photography doesn’t want your business.
Not all wrongs can, or should, be solved by the government. “Of the several photographers in town, one is a homophobe who refuses my business” is not a problem for the government.
This is from a site that is SATIRE… And is NOT TRUE!
They made this story up in August 23, 2013 !!!
Try not being so bigoted!~
http://tribuneherald.net/2013/08/23/kkk-wins-lawsuit-against-bakery-for-discrimination/
Why, thank-you, Captain Obvious, and which part of the long, bolded intro saying just this did you miss?
[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.]
You should try some remedial reading, and you are banned, ass, for this stunt, and for calling this spectacularly unbigoted post bigoted. Go away. this blog is too hard for you.