The legal drama over conservative Christian refusal to provide gay people with a printed or iced message has been seen as a political dispute between gay equality, on the one hand, and religious freedom or rights of expression on the other. This post argues for a different approach, focusing on the extent to which religious beliefs provide a legitimate ground for avoiding alienation. That people do work which is destructive, meaningless, insulting or exploitative should be of huge concern. However, equality’s terrain, in terms of the right to discriminate, should not be the one place where problems of alienation are legally and politically accommodated.
A baker in Northern Ireland has contravened equality law by refusing to ice a cake with the words: “support gay marriage”. In Colorado, by contrast, a bakery that refused, on conscience grounds, to ice an anti-gay message, including the words “homosexuality is a detestable sin” was held not to have discriminated. Other cases from Canada and the States involving resistant printers and yet more cake makers pose a similar question: can people legally refuse a commercial solicitation to produce a message they object to (on T-shirts, cakes, and cards), particularly when this message is associated with the rights or equality of a particular group?
I have found this issue, from a progressive perspective, difficult. The notion that the buyer trumps all – that they are entitled to get whatever they want in the market-place providing they have the ability to pay – is a fraught principle; and strikingly (though often ignored), no similar protection from discrimination is available for the seller.
But if our right to purchase is not to be supreme, do expressive rights provide a solid ground of limitation? Should people be able to say no to producing an “objectionable” message for a paying other? It is tempting here to draw a distinction between discriminating on grounds of status and identity and discriminating on grounds of message: that the first should be prohibited but not the second. This is the position many have taken in relation to anti-gay refusal, including the Canadian Civil Liberties Association in the case of a printer who, on religious grounds, wouldn’t produce envelopes, headed notepaper and business cards for a gay archive.
However, creating a line between status discrimination and speech-based disagreement has two problems.
First, it assumes more separation than is the case. While it is true that gay-positive speech can be supported by heterosexuals, and not all gay people support anti-discrimination measures, there is a close relationship between gay rights-supporting speech and equality as a material experience (or supporting gay marriage and being able to actually get married), as the judge in the Northern Ireland case affirmed. This inextricable connection parallels a similar point made previously on the relationship between gay acts and gay identity. Against conservative claims that the two could be divorced, so prohibiting same-sex sex would have no necessary effect on gay adults, progressive gay theorists argued the two were entwined. Criminalising anal intercourse, for instance, would have a particular impact on men who identified as gay; even as many other men (and women) might engage in anal intercourse and not all gay men do so.
Second, drawing a boundary around expressive acts is not straight-forward. American jurisprudence is obsessed with the question of what counts as speech. A message on a T-shirt or on a cake may seem unequivocal, but what about figurines topping a wedding cake? If a gay wedding couple want same-sex miniature dolls, is the act of putting them there an act of pro-gay advocacy or simply equal treatment? Can conservative Christian cake-makers legitimately declare that they have no objection to making a cake for couples who happen to be gay, but that they can’t include same-sex dolls because this would conflict with their beliefs? Or, to take a different case, also subject to litigation in the States: is creating a wedding bouquet an expressive act? What about acting as a wedding photographer? Should you be able to refuse to photograph a same-sex ceremony based on the “message” the photos will convey?
To the extent the courts have said no, the issue here may be less whether the baker, photographer or florist’s acts are expressive as whether they involve participating in undesired advocacy. So, we might distinguish between the wedding photos and flowers, on the one hand, and the iced cake message on the other. But is it right to protect objected-to advocacy over other forms of expression? Is it worse for an opponent of gay rights to have to write ‘gay pride’ in sugar than to have to photograph a gay wedding?
And does it matter?
One of the arguments made by conservative Christians, opposed to acting as marriage and civil partnership registrars (and also as therapists), is that these are contexts which should be positive and congratulatory (or, in the case of therapy, affirming and supportive): who would want to be married by someone who opposes the very ground and terms of one’s marriage? Who would want therapy from a provider wedded to the belief that one’s romantic and sexual choices were sinful and against God’s plan?
Conservative professed concerns may seem disingenuous; and service users feelings are likely to vary. Some may care far more about receiving a professional, appropriate service than a purchased display of congruent feeling or intimacy.
And yet, in conservative Christian opposition to expressing distasteful feelings and disagreed-with views, something fundamental to progressive politics lies burrowed: the challenge to alienation.
Workers are alienated in many ways — from selling their labour power to acting in ways they find distasteful or appalling. Alienation isn’t just about compelled expressive acts: having to produce objected-to messages. It may also arise in work and trade that involves competitive ranking, surveillance or coercion of others, armaments, private for-profit employment, excessive bureaucratic procedures, as well as the very relationship of economic exploitation itself.
Is icing cake advocacy any worse than these other experiences of work-place alienation? There are so many things we, as workers, are expected to contribute towards and participate in — depositing something of ourselves in the services provided for another or “tainted” by a connection we haven’t chosen.
Does this mean a right to be exempt should apply to all forms of alienation or only some? And if only some, which should be accommodated?
Typically, refusals anchored in religious beliefs, and sometimes other beliefs, such as pacifism, have been foregrounded, magnets for sympathy (if not necessarily accommodation). Outside these narrow confines, people are told to just get on with the job or, if they find the job too distasteful, to quit and find a new one.
In capitalist society, alienation is common-place; an inevitable part of the ‘game’, as workers are subject to the demands of employers, and traders subject to the claims of non-employing purchasers in the market-place, who direct what they must provide.
And so, we might ask, how should we struggle against the alienation of our labour?
It’s easy for messages in icing and on T-shirts to become the place where a line is drawn; for progressives to feel that this is one form of compulsion or alienation too far.
But, while conservative Christian workers and market actors are evidently being asked to act in ways that conflict with their beliefs (in a context where gay equality has become, quite remarkably, a political norm), equality should not be the exception to alienation — its thin wedge — the one context where you don’t have to do something you’d rather not.
Instead, we should approach equality as an equally important principle that today often finds itself in tension with struggles against alienation, particularly by conservative forces.
Equality, then, may be grounds for accepting some degree of alienation, that if you provide a service, including one that involves printing messages, you may have to provide it equally.
This doesn’t mean all messages must be printed, but that requests be interpreted in ways attentive to the claims of substantive equality — with its understanding of history, power and context: so, while a willingness to print “straight pride” but not “gay pride” on a T-shirt sounds like discrimination, the reverse may not be so.
Letting equality, in certain circumstances, trump alienation is not simply about participating in the market. In a gift economy, discrimination can also prove unacceptable. In research I carried out at a women’s sexual bathhouse in Toronto, organisers explained how those volunteering to provide erotic services were told they had to treat transgendered people equally. If they were not prepared, for instance, to do a lap-dance for a trans-person, they should not opt to provide lap-dances at the bathhouse.
In a voluntary organisation, such firm positions may not produce alienation; people can opt to participate in other ways (or not at all). The difficulty with mainstream economies and employment is that this flexibility is less available; most people need to work to earn a living.
Conservative Christians have raised the danger of producers feeling little connection or attachment to what they produce, as the requirement to act automatically, deferentially or subserviently supersedes a more creative, emergent, expressive relationship to one’s labours. In conservative Christian claims, the problem is a growing one, fueled by the state’s alignment with gay equality. But of course alienation is much older, wider and far more deeply entrenched.
In the struggle to find a progressive response to these legal dramas over conservative Christian refusal, it’s easy to get seduced into determining the correct narrow principles and the bases for exception, and of course legal arenas require us to do so.
The political challenge, however, I think is to focus on the wider context: keeping both substantive equality and the need to struggle against alienated labour at play.
Otherwise, the debate risks reinforcing the exceptional status of particular beliefs: as religious conservatives need for a congruent emotional relationship to their work and its communicative meanings is recognised, while for others it is routinely denied (or, more commonly, ignored). But more than this, without a wider political engagement, the demand for a religious exception — whether accepted or refused — affirms the presumption that buyers of labour and other services are normally entitled to get exactly what they think they have purchased.
Davina Cooper is Professor of Law and Political Theory at Kent Law School, University of Kent.