Is making a cake for a gay wedding the same as making a cake with an anti-gay message? This equivalence was drawn by conservative judge, Justice Gorsuch, in the US Supreme Court decision on Masterpiece Cakeshop recently released. For the Trump nominee, both kinds of cakes were exercises in expression, and to require bakers to make the first but not the second “failed to act neutrally toward [the baker’s] religious faith.” Justice Ginsburg disagreed. Making a cake for a gay wedding was simply a cake for a wedding; that it involved a same-sex couple was irrelevant. From this perspective, discriminating against a particular class of customers is not the same as refusing to make a cake with a demeaning anti-gay message iced upon it.
In the UK, similar facts are currently before the Supreme Court, in a case involving Ashers Baking Company, who refused, on religious grounds, to make a cake with the slogan “Support gay marriage.” Elsewhere, requests for cakes bearing anti-gay messages have also been turned down. Alongside the bible-shaped cakes and hostile accompanying text sought by William Jack in Colorado (discussed in Masterpiece), a Dublin baker refused to make a cake, iced with a sentence that included, ‘GAY MARRIAGE’ IS A PERVERSION OF EQUALITY and the 34th Amendment to the Irish Constitution should be REPEALED.
We could distinguish between cakes celebrating and opposing gay marriage, as legal objects, in various ways. A wedding cake is simply a cake, the other, a derogatory act in sugar; one supports people’s nourishment of their own lives, the other is an outward-facing attack; one is anchored in contemporary values of equality and diversity, the other in disputed interpretations of biblical texts.
But, while the harms gay couples face from direct discrimination may be rightly favoured over the unequal indirect impact conservative Christians experience, Christian litigants do contribute something important to this debate – something often ignored.
This is the non-liberal, usefully provocative claim that workers form part of what they make and do.
Liberal thought typically creates walls and divisions between spheres and activities. So, a cake for a gay wedding is simply a cake for a wedding. Conservative Christians, by contrast, as the Masterpiece judgments reveal, treat the cake as changed by who it celebrates. A cake for a gay wedding, even if it appears the same or almost the same (perhaps with different figurines on top) to a cake for a heterosexual wedding, is in fact different. And conservatives go further. Not only is such a cake saturated by its gay celebratory event, but its creators – “cake artists” – also become part of both the cake and the event. Justice Thomas describes how the Masterpiece cake-maker delivered his cakes to the wedding; sometimes mingling afterwards with guests.
This notion of being part of the event has arisen in other cases where Christian florists, photographers, card makers, and wedding-planners also seek legal exemption from providing their products to same-sex weddings. Consistently, in emphasising the creative and expressive dimensions of their work, they tie themselves and their artistry to their products, and to the events their products are used for. In this way, products become services, and providing a service becomes both an endorsement and a fusion.
For many, these claims sound far-fetched; instrumental arguments to bring religious-based refusal within the terms of prevailing law. But I think these arguments are worth paying attention to. Although couched in the language of religious rights, they speak to the important and troubling issue of alienation: that our labour, and what our labour creates, are owned exclusively by employers or other purchasers, with nothing remaining to the worker or creator themselves.
In a market economy, people are obliged to sell their labour; yet, as political philosopher Carole Pateman has argued, the worker goes along too; no one can send their labour alone to perform the job. Are workers, then, part of what they make? Should we treat services and products as carrying some residue of the people who have created them?
Conservative Christian objections, unintentionally, bring these wider questions to the fore, allowing us to ask: when is it reasonable for a worker to say they don’t want to endorse or be part of a particular outcome? Might educators, for instance, legitimately declare, including on grounds of belief, that they don’t want their labour to involve ranking students or disciplining them; that they don’t want to endorse, by being part of, “pointless” and “undemocratic” meetings?
Gay equality should not be the one place where the right to withdraw one’s labour is affirmed.
Recognising the generative, sometimes enduring, connections of people to their work is important. The challenge is how to recognise these connections while still allowing the things created (cakes, photographs, flower arrangements and much more) to have a separate life.
Can we recognise the attachment, knowing it may be an unhappy attachment, between a religious cake-maker and their same-sex-celebrating wedding cake, while affirming, in an era of gay equality, that this is the kind of life a wedding cake can legitimately be expected to have?
The original version of this article was posted on the Oxford Human Rights Hub, 25 June 2018.
These issues are explored further in my forthcoming book, Feeling like a State: Desires, Denials and the Fabrication of Authority (Duke University Press 2019).