For some reason, cakes became a major flashpoint in anti-discrimination law a few years ago. In the Masterpiece Cakeshop case in the US Supreme Court and the Asher’s Bakery case in the UK Supreme Court, courts were confronted with similar, albeit not identical dilemmas. In the Masterpiece Cakeshop case, two same-sex customers went into a bakery looking to purchase a wedding cake to celebrate their marriage. In the Asher’s Bakery case, a homosexual rights ‘activist’ looked to purchase a bespoke cake bearing the slogan ‘Support same-sex marriage’.
In both cases, the bakers refused to supply the cake due to their Christian beliefs. In both cases, the respective Supreme Courts held that this refusal was legally permissible though for different reasons. The US decision was a narrow one that overturned a decision by a state tribunal on the grounds that it displayed religious hostility to the owner of the Masterpiece Cakeshop. The UK decision was a broader one, focusing on the freedom of conscience and expression of the baker.
How should we think about these cases? The philosopher John Corvino has written an interesting analysis of the arguments in the Masterpiece Cakeshop case. Looking closely at two of the concurring judgments in the case, one from Justice Kagan and one from Justice Gorsuch, he suggests that there were legitimate grounds for thinking that the refusal of service by the owner of the Masterpiece Cakeshop was discriminatory. Corvino argues that there is an important distinction to be drawn between the use and design of a cake (or, indeed, any object) when it comes to the application of anti-discrimination law: it’s okay to refuse to sell a particular design of cake but not okay to refuse to sell a particular cake based on its possible use. It seems that the UK Supreme Court, agreed with this perspective when reaching their decision.
In what follows, I want to explain Corvino’s reasoning. In doing so, I’m focusing on the general philosophical issues pertaining to discrimination and not on the legal niceties of constitutional interpretation and so forth.
1. Brief Notes on Discrimination
There is no universally agreed upon definition of discrimination (then again, is there a universally agreed upon definition of any philosophically contentious concept?). Very generally, to discriminate between two people, X and Y, is to treat them differently for some reason. If you have two children and you give one of them an ice-cream for dinner and the other one a bowl of cold rice, you are discriminating between them. Some forms of discrimination are justifiable — e.g. it makes sense to give healthcare workers prioritised access to flu vaccines — and some are not — e.g. you cannot fire a woman from her job just because she takes maternity leave. The debate in law and philosophy centres on the dividing line between justifiable and unjustifiable forms of discrimination.
How should we draw this line? Most legal systems around the world do this in a similar way. They define people in terms of different characteristics that they possess (height, age, weight, ethnicity, gender etc) and then distinguish between protected characteristics and non-protected characteristics. Protected characteristics include things like age, religion, race, gender, ethnicity, and, in many places, sexual orientation. It is against the law to discriminate against someone on the basis of a protected characteristic. Non-protected characteristics are not like that. They include things like educational achievement, career history, height, and so on. It is is usually permissible to discriminate between people on the basis of non-protected characteristic (as well as other considerations not pertaining to people). That said, some caution should be expressed because non-protected characteristics are tricky: sometimes they correlate with or stand in for protected characteristics and so can be impugned on the grounds that they indirectly sustain discrimination on the basis of protected characteristics. For example, discriminating against women in employment decisions because they have taken ‘career breaks’ might sound innocuous at a first glance until you realise that ‘career breaks’ can be a proxy for ‘maternity leave’.
Another point to be made here is that sometimes the relationships between personal characteristics and physical actions (the things people do) can be contentious in discrimination cases. Are the things that people do as a result of their personal characteristics integral to those characteristics or not? For example, there is a common slogan among religious believers, in relation to homosexuality, that they can ‘love the sinner’ (the homosexual person) but ‘hate the sin’ (the homosexual activity the person engages in). This can lead them to claim that they are not discriminating against homosexuals when treating them differently or denying them certain entitlements. On the contrary, they will argue that they love and care for them. They just discriminate against what they do. The problem with this line of argument is that it seems a little disingenuous: in discriminating against what they do you are, in essence, discriminating against this specific attribute of their personhood. Maybe you love and care for them as a human in general, but not as a homosexual in particular.
Furthermore, this approach to the relationship between actions and persons gives rise to problems in other contexts. What if we discriminated against Christians for attending church? Could we argue that we are not discriminating against them qua Christian believers but only against what they do as a result of this? This seems implausible. That said, there may be some kinds of activities that are only loosely or indirectly attributable to a protected characteristic, that it is okay to discriminate on the basis of. This distinction — between protected characteristics and the activities associated with them — becomes relevant later on in this discussion.
What justifies the distinction between protected and non-protected characteristics? It’s hard to say for sure. Oftentimes this isn’t well theorised. Usually, the assumption is that protected characteristics are somehow fixed or natural properties of people that are beyond their control. The reasoning then is that it wouldn’t be fair to distinguish between people on the basis of things outside their control. But this argument is not without its flaws and may not explain all cases of anti-discrimination law. For example, people can and do change their religious beliefs all the time. Nevertheless, religious belief is usually a protected characteristic.
Whatever the ultimate reason may be, the issue in the bakery cases is the same. In both cases, the bakers refused to sell items to same-sex people. The argument in both cases that this amounted to discrimination on the basis of sexual orientation. The difficulty in both cases is that this argument seems to butt up against the rights of religious people to freedom of expression/conscience.
Let’s now consider Corvino’s analysis of the cases.
2. Cakes versus Users of Cakes
To understand the arguments in the Masterpiece Cakeshop case, we need to add some more factual and contextual detail, not covered in the introduction. After the facts that gave rise to the Masterpiece case arose, a man called William Jack went to another bakery in Colorado (the same state where the Masterpiece Cakeshop was located) called the Azucar Bakery and asked for a bespoke cake to be made for him. This cake was to be in the shape of a bible, with two grooms on it, a red ‘X’ over them, and an inscription reciting some biblical verses disapproving of gay marriage. Unsurprisingly, the Azucar Bakery refused to make the cake on the basis that they disapproved of the message.
William Jack was trying to prove a point. If it was okay for the Azucar Bakery to refuse to bake the bible-quoting cake, why was it not okay for the Masterpiece Cakeshop to refuse to supply a wedding cake for a same-sex marriage? In both scenarios, the bakers were exercising their freedom of conscience rights not to sell a cake of whose message they disapproved. The only difference — if there was one — is that mainstream opinion was more supportive of the conscience being expressed in the Azucar case. That shouldn’t be a relevant factor. The legal system should protect freedom of religious conscience too, even if many people disapprove of the underlying beliefs.
But is the analogy between the Azucar Bakery and Masterpiece Cakeshop cases as simple and direct as William Jack would have us believe? As best we can tell, there was no proposed slogan or other specifically homosexual symbolic material on the wedding cake in that case. The couple just asked for a wedding cake. Maybe they would have wanted to add some symbols to it if the baker had been willing to sell to them. The problem is that the negotiation never got that far. They asked for a wedding cake and were refused on the grounds that the cake was being used to celebrate a same-sex wedding.
This undermines the analogy that William Jack is trying to draw. The baker in the Masterpiece case doesn’t seem to be disapproving of the message associated with the wedding cake, per se but, rather, the use to which it will be put: the celebration of the same-sex wedding. This looks like it could be grounds for discrimination in a way that denying William Jack the bible-quoting cake is not.
Corvino finesses this point in the following way. He argues that there is an important distinction to be drawn between two things:
Design-Based Objection to a Cake: Objecting to the sale of the cake based on some intrinsic properties it has in virtue of its design.
Use-Based Objection to a Cake: Objecting to the sale of the cake on the basis of the use to which it is to be put (i.e. on the basis some extrinsic properties acquired by the cake in a certain context).
In the Azucar Bakery case, the baker had a design-based objection to creating the anti-homosexual cake. They did not object to William Jack as a customer or a religious believer. They were willing to sell him other cakes. They just wouldn’t make that particular cake, bearing that particular message. Requiring them to do so in the interests of anti-discrimination law would have been to impinge on their freedom of conscience and expression rights.
In the Masterpiece Cakeshop case, the baker had a use-based objection to selling a same-sex couple a wedding cake. He didn’t want to sell them a generic wedding cake because he didn’t like how they intended to use it. Now, to be fair, he was willing to sell them other cakes, and so had no problem selling items to homosexuals in general. He just objected to their symbolic use of the wedding cake. Nevertheless, this seems more like discrimination against those customers on the basis of who they were and not on the basis of what the cake itself said. Requiring him to sell them the cake would not infringe on his freedom of conscience or expression rights. He already made wedding cakes. He was still free to make and create whichever cakes he liked (bearing whichever messages he liked). He just couldn’t control how people used them.
This line of reasoning — that there is an important distinction between the design of a cake and the use of a cake — is essentially what motivated the UK Supreme Court to find in favour of Asher’s Bakery in their version of the cake case. Asher’s Bakery, unlike Masterpiece Cakeshop, were being asked to make a cake bearing a particular message (i.e. having a particular design). Forcing them to make that cake would impinge on their freedom of conscience and expression rights.
3. Objections and Replies
Is this a strong argument? Corvino considers three main objections to it in his article. I want to address these now and offer some of my own thoughts.
The first objection has to do with the whole idea of use-based objections. Corvino’s claim seems to be that in discriminating against the use to which the cake might be put, the owner of the Masterpiece Cakeshop was, in essence, discriminating against the same-sex couple for who they were, i.e. on the grounds of their sexual orientation. It is supposed to then follow that he wasn’t entitled to do this since sexual orientation was a protected characteristic. But is that right? Is there not, as was pointed out earlier on, a distinction to be made between who a person is and what a person does (remember the earlier comments about ‘loving the sinner’ and ‘hating the sin’)?
Corvino makes two points in response to this. First, he argues that oftentimes the way in which we describe the use of something implicates who a person is and not just what they do. This means that objecting to what a person does could be semantically equivalent to objecting to who they are. You could, for example, argue that the owner of the Masterpiece Cakeshop was not willing to sell cakes to ‘people intending to use them to celebrate same-sex weddings’. This is subtly different from saying that he objected to a use to which the cakes might be put. Describing the objection in this way might cause us to question the exact object of his discriminatory attitude. This bit of linguistic trickery, however, is unlikely to persuade anyone. The second, and more telling point made by Corvino, is about ‘identity-constituting practices’. These are activities that are so integral to a protected person’s identity that discriminating against the practice is the same thing as discriminating against the person. As he puts it:
…some practices are constitutive of some identities, such that discrimination against the practice is tantamount to discrimination against the group bearing the identity.
This sounds about right to me. But accepting this idea does give rise to some further problems. We could ask the question: is getting married an identity-forming practice for same-sex people? Would objecting to that be tantamount to objecting to who they are? It is at least plausible to suggest that it is not. We could argue that homosexuals can be happy, flourishing and self-endorsing without getting married. (The same is true, of course, for heterosexuals.) That said, the riposte to this is that, in our world, marriage does have an important symbolic meaning and many people will think that it is integral to who they are (and their sense of belonging in a society) to have the right to engage in that practice. In other words, there are some people that will constitute themselves through the symbolic act of marriage. So perhaps it is identity-constituting for some homosexuals.
The only issue with this argument is that it might cause us to wonder whether disapproving of homosexuality is integral to being a Christian, at least as some people conceive of what it means to be a Christian. In other words, if we accept this reasoning is it not then plausible to say that denying William Jack the cake with the bible quotes is tantamount to objecting to his self-constitution as a Christian? Corvino’s response to that is just to fall back on the design/use distinction: no one is objecting to William Jack’s sense of Christian identity or denying him the right to disapprove of homosexuality; they are objecting to making a particular design of cake. But I’m not sure if that is a good response since denying the couple the cake in the Masterpiece Cakeshop case doesn’t prevent them from getting married. It just prevents them from celebrating it with a cake from that particular cakeshop. That said, when we combine this point with the point that Corvino makes in response to the third objection (discussed below) we might be able to resist that conclusion.
The second objection that Corvino discusses has to do with the meaning of the cake. The design-based objection hinges on claims about the meaning associated with particular cake designs. But could you not argue that meaning always depends on context? What a particular cake design means depends, to at least some extent, on the use to which it is put? A generic wedding cake means something different at a same-sex wedding than it does at a heterosexual wedding: in the former case in symbolises an endorsement of same-sex weddings and in the latter case it does not.
This objection has the virtue of being based on something that is true: meaning does change with context. But, as Corvino argues, this shouldn’t affect our judgment about whether a particular design of cake can be rejected or not. A person selling an item cannot possibly hope to control all the possible contexts in which it can be used or the meaning it might take on in those different contexts. To give an example, the person (or persons) that designed the original Guy Fawkes mask cannot possibly be held responsible for, or be allowed to control, the meaning that this mask design has taken on in social protest movements and hacker culture. They can only control the intrinsic features of its design. Ditto for a baker. His or her freedom of conscience covers the right to control the intrinsic features of its design and not all the meanings that might attach to that design down the line.
The third objection that Corvino discusses is the so-called ‘Goldilocks Objection’. This one comes from the concurring judgments in the Masterpiece Cakeshop case in the US Supreme Court. In her concurring judgment, Justice Kagan essentially endorsed the reasoning outline above: that the owner of the Masterpiece Cakeshop may have been impugned for discrimination if we accept that he was objecting the use of the cake and not simply the design. She didn’t phrase it in quite this way but that seems to be the conclusion she reached. Justice Gorsuch objected to this way of looking at it insofar as it was too convenient. To reach the conclusion that the objection was to the use of the cake and not its intrinsic design, we had to describe the cake at just the right level of generality. But what would justify describing it at that “just right” level of generality? As he put it himself:
At its most general level, the cake at issue in Mr. Phillips’s case was just a mixture of flour and eggs; at its most specific level, it was a cake celebrating the same-sex wedding of Mr. Craig and Mr. Mullins. We are told here, however, to apply a sort of Goldilocks rule: describing the cake by its ingredients is too general; understanding it as celebrating a same-sex wedding is too specific; but regarding it as a generic wedding cake is just right.
Let’s make this point even more explicit. Gorsuch is saying that the cake at issue in the Masterpiece case can be described in different ways. You can think of it as [just a cake] with no properties unique to weddings. You can think of it as a [wedding cake], intended to be used to celebrate weddings. Or you can think of it as [same-sex wedding cake], intended to be used to celebrate a specific same-sex marriage. The problem with Kagan’s conclusion, in Gorsuch’s eyes, is that it arbitrarily picks the middle-level description, which just happens to support Kagan’s preferred view.
You can imagine what Corvino’s response to this is. He argues that Kagan has not arbitrarily picked the middle level description. She has picked the level that corresponds with the intrinsic, design-based features of the cake: it was designed as a cake to celebrate weddings. She has discounted the lower level description that focuses on the extrinsic properties that a cake of that design might acquire if it is used in a same-sex wedding celebration. If you allowed extrinsic properties of cakes (or other items) to determine their character for the purposes of discrimination law, you would make a mockery of those laws. Any item can be used to celebrate or support a lifestyle or identity under the right circumstance. For example (and this comes from Corvino), birthday cakes are used to celebrate the ongoing life of someone. What if that person is gay, Black or Muslim? Surely it would be discriminatory to not sell a birthday cake to a Muslim simply because it celebrated their life (which you might object to for other reasons)? To make the law workable, you have to focus on the intrinsic properties of the cake, not the extrinsic properties it might take on. This point applies more generally to the sale of other items.
This brings us to the end of this analysis of Corvino’s argument. Overall, I think that he makes some good points. There is some plausibility to the distinction between the design of something and the use to which it is put. Discrimination that results from an unwillingness to supply a particular design of an item might be justifiable; but discrimination that results from an unwillingness to supply an item because it risks being used by people in ‘identity-constituting’ practices of which you disapprove is not. That said, there are limits to this analysis. What counts as an identity-constituting practice might be open to debate. And there are, presumably, other moral limits that might apply to the supply of goods and services that could trump concerns about discrimination. For example, an unwillingness to supply a knife for fear that it might be used in a ritual honour killing, might be permissible. That, however, is an argument for another day.