Over the past several years, there have been a number of reported incidents in the U.S. where a bakery has refused to make a wedding cake for a same-sex wedding. In the latest case, a bakery in Gresham, Oregon refused to bake a cake for a wedding between two women, citing religious objections. One of the aggrieved fiancées has filed a complaint with the state attorney general’s office, which is now investigating whether the bakery violated an Oregon statute prohibiting discrimination in public accommodations.
This incident illustrates a wider phenomenon—unwillingness to pursue liberal values when it comes to the politics of sexual orientation. By liberalism, I mean the strain of European political philosophy that arose in the eighteenth and nineteenth centuries partly as a reaction to the devastating religious wars of the sixteenth and seventeenth century, most particularly the Thirty Years’ War that killed eight million people in central Europe. Liberals like John Locke, Adam Smith, David Hume, and John Stuart Mill stressed individual rights, limited government, and freedoms of speech, press, religion, contract, and property as antidotes to such bloodshed. They aimed to allow people with fundamentally different world views to contribute jointly to the projects of government, order, and civil society with minimum friction. Liberalism is the philosophy at the heart of the enduring American constitutional order.
Alas, liberalism is losing out in the culture wars. The gay wedding cakes battles are representative of a wider disease that infects people in both camps—invoking the power of government to endorse and enforce one’s world view on matters of sexuality and identity. Rather than just saying, “I’ll take my business elsewhere,” the impulse is to call the attorney general’s office in support of one’s position, as though law and politics were the appropriate fora for deciding the morality of sexual identity and practice.
The predominant forces in both camps are pushing anti-liberal agendas. In 2004, the Virginia Legislature passed a statute invalidating private contracts between gay people if they replicated the incidences of marriage. Conservatives continue to resist political settlements on same-sex marriage that would shift marriage decisions from the state to individuals and private communities. On the other side, progressives are fighting to enshrine their views in marriage and antidiscrimination laws and school curricula. In the Chik-fil-A flap last summer, progressive politicians around the country threatened zoning prohibitions or other deployments of state power to fight the forces of “hatred and intolerance.”
Where are the liberals? Where are the people willing to say: “As much as possible, let’s not decide these questions in the arena of the state. Let’s let them play out in families, churches, religious communities, social networks, friendships, businesses, and private associations. Let’s resist the impulse to make these kinds of divisive moral and religious questions political questions. Let’s not fight another Thirty Years’ War.”
Let me try to preempt some likely objections with two concluding observations.
First, a liberal disposition cannot be confined to circumstances where one disapproves of someone else’s conduct but it causes no harm to others—because that’s an empty set. It’s child’s play for lawyers, philosophers, and economists to demonstrate that almost anything one person does affects other people. When the baker refuses to make the wedding cake, it imposes real distress, humiliation, and inconvenience on the person requesting the cake. Conversely, having to make the cake would impose real offense and moral indignity on the baker. Liberalism doesn’t depend on a view that one of the parties really isn’t hurt, any more than free speech depends on a view that words can never be hurtful. Liberalism is a disposition that says “the state must let pass these sorts of harm—they do not rise to the level of force and fraud where state intervention is justified.”
Second, to espouse liberalism isn’t to pretend that the state never has to make political judgments on issues of sexual orientation. Since the state runs the military, it must decide whether gay people can serve in the armed forces. Since the state regulates adoptions, it must decide whether gay people can adopt. And there are of course other examples. But the fact that it is sometimes unavoidable for the state to wade into these thorny issues does not justify the state wading in when it doesn’t have to. The great project of liberalism is to strive continually for resolutions that don’t involve the state deciding divisive issues of meaning and morality that require choosing between contending world views. This isn’t always possible, but it’s possible much more of the time than it happens.
Calling all liberals . . .
Freedom in the Liberal State, by Rex Ahdar (Otago) and Ian Leigh (Durham). The publisher’s description follows:
