On Gay Cakes

by cojsmithblog

There’s a lot of BS going around on the so called “gay cake” decision, so I’ll hopefully be able to sum up why this was wrong in a succinct way so that everyone can understand. I walk into a gun shop in Colorado, I am a gay person with no criminal record or other disqualifying reasons that would prevent me from purchasing a gun. The proprietor of that shop cannot deny me the purchase of a gun due to my being gay. This is not to say that I have the “special right” to demand that the gun shop craft a specific altered version of a rifle that has the full works of Oscar Wilde carved into the stock. That would undoubtedly be a “gay gun,” but it would also be a special request that the shop owner could decline based on religious objections or really any objections.

What happened today was that I was told not only do I have no right to a gay gun, I don’t have the right as a gay man to purchase a gun from a gun shop in Colorado, despite the fact that Colorado’s civil rights statues specifically protect gay people as a protected class. Ok, it’s actually not quite that bad because this was a “narrow ruling.” “Narrow ruling” also apparently needs some clarification, because although the margin of the vote was 7 to 2, which would seem like not so narrow a vote, the ruling was narrowly ruled on the basis that the Supreme Court felt that the Colorado Civil Rights Commission did not give the baker a fair shake. This is in fact not the case, but that’s what has been decided regardless. [Stop here for the succinct version, continue for the TL;DR]

This does still leave us with the eternal question of “why not go to a baker that wants your business?” I am going to put it to you that civil rights are a value worth upholding, and that is what this is. The argument is put forth that we should leave it up to the marketplace to decide which business owners will choose to sell to specific clientele. That is a BS argument on moral grounds, on economic grounds, on legal grounds, on basically every possible level.

Economically this is a bad argument because it allows for the subdivision of the consumer market in a way that would drive up prices for everyone. I might choose to sell only to people who are atheists, you might sell only to people who are Anabaptists, and the next person might sell only to Muslims, etc. Each of these clienteles gets so specific that you’d think we might not be able to make money from such small slivers of the pie, but because we’re not actually competing with each other we can charge each of those slices much more than they would otherwise pay if we were in competition. Even if someone decides they, just out of the goodness of their heart, decides that they will sell to anyone, we’ve seen that the individualization of commodities, especially news information, is very effective because people do like to be isolated from people they don’t like and will willingly pay extra to have their specially catered experiences. But at what cost?

As an analogy to this hypothetical universe, look at the high prices British people pay for rail services. As a result of rolling stock companies (i.e. the companies that lease the trains to train operating companies), British railways cost a heck of a lot more to operate. Why is that? Can’t the train operators simply buy from a different rolling stock company if the price is too high? No, in fact they can’t, for the simple reason that the rolling stock companies in practice tend to specialize on one type of train (diesel freight, overhead electric commuter, third rail commuter, different size third rail commuter, etc). So unless you plan on ripping up all your existing rails, to lay down new track to fit the models sold by a theoretical competitor, you’re stuck with what you’ve got. So unless you plan on ripping off your skin and changing it to a different color, converting to a different religion, falling in love with a sex of person different from who you’re naturally attracted to, you’re stuck with what you’ve got.

Legally, this is the exact battle we’ve fought in previous civil rights battles. Why couldn’t Rosa Parks just use a different public transportation company? Why did they have to sit at a whites only lunch counter? Why couldn’t they stop at a motel that would serve black people? All these questions should be seen as BS on their face as a legal matter because 1 they should be able to expect equal treatment as human beings and 2 in many cases there aren’t always infinitely ready alternatives. As a legal matter, we have noticed that in practice many groups face discrimination and have sought to ensure people are treated equally by passing laws saying that if you want to sell your products to the public, you must sell it to all the public.

Again, I need to differentiate between requiring merchants, service providers, etc to engage in commerce with all people and forcing them to provide special services to select groups. A BBQ restaurant that only sells whole hog is required to sell their product to everyone who asks for it, but they are not required to find a kosher alternative to sell to a potential Jewish client, because that is an unreasonable special request that would require them to effectively be a different business. The cake baker has, presumably, many cakes on display to sell for any reason. He did not offer any of those all purpose cakes to the gay couple in question, he refused any form of service to them. They did not even get to the point of asking for a cake that would have a two-male topper, if they were even going to ask for that. He refused service, basic service, to a protected class under Colorado’s civil rights statutes.

Morally this should be beneath us, but obviously in the era of Trump, there may very well be nothing beneath us anymore. But we need to do better as a society. It would be nice for it to be anathema for anyone to hear of bigotry, but as recorded by the SPLC and others, hate crimes have recently (as in since the general election) gotten more prevalent, not less. Hate groups have become emboldened and march in the streets and plow down innocent anti-racist, anti-fascist protesters while getting a “both sides” treatment from the highest levels. The Justice Department and Department of Homeland Security are devoting no resources to combatting Right Wing, Fascist, and/or White Nationalist terrorist groups, especially compared with the much smaller domestic threat of Islamic terrorism. And getting those big issues wrong makes it next to impossible to get the little issues wrong.

Maybe this isn’t the greatest injustice that has ever been inflicted on any human being, but damn it we need to say here and no further at some point and the rational point was over a year and a half ago. Gay cakes are not the hill I plan on dying on, the ability for gay people to exist in a society as equal members, including when buying a freaking cake is. And if you still don’t understand the injustice being done, if you still don’t see how this fits into a larger fight over small slights and giant threats, then I don’t know what to say. We sure had a good run there with the whole society thing, it was nice while it lasted.

Now, where’s my gun? I wanted to finish the end of Dorian Gray.