Thirdmill – who is not an idiot, but is wrong in this instance – has repeated a bad, bad, bad, bad, bad, fucked and wrong trope over on Pharyngula. This trope is repeated by idiots so much that eventually some reasonable people start to think that maybe they have a point, which is why the trope needs to get stomped on hard, though please don’t stomp on Thirdmill as a person, should you choose to comment.

The trope is this: when considering discrimination, we need to consider the genuinely held beliefs and permit room for people to adhere to their consciences when doing so does not directly harm another. This was in the context of a Pharyngula post about how in the 99 years after the civil war and before the federal government started butting in, the invisible hand of the free market had totally taken care of private sector segregation just fine, and that Title 7 thing was completely unnecessary and Heart of Atlanta is a load of crap. Because of course it was, this is Sam Harris’ opinion, remember?


Or maybe it was just about segregation of gay bridegrooms, because discriminating against The Gays is totally something the free market can handle in a week or two even if discrimination on the basis of skin color is beyond the powers of the free market’s magic. Because Adam Smith’s hand is white and from the 18th century, so of course it can’t handle racism, but a hand has no sexual orientation, so Sam Harris’ circle jerk with Adam Smith’s dead hand is totally not a disgusting fetish that should be removed from the public eye. Or something.

What the seemingly more reasonable position of Thirdmill ignores is that in the United States we very much do permit room for people to adhere to their consciences when choosing for whom to bake cakes. My mom baked cakes for my birthday without baking cakes for the neighbor’s birthday. What’s with that? And my mom could have disowned me and refused to celebrate my birthday after I came out (as did my father) without facing any legal consequences at all.

So, wait, that’s different, right? YES. EXACTLY.

But the difference is not the money. As it turns out, my mom actually baked a couple cakes for money. This was extremely rare, I can only think of twice, but it did happen. Consider it reimbursement for the cake supplies plus a tip. It’s not like my mom was making any significant income off this thing she did twice in 18 years, but she did do it and could have done it more.

Well, what if my mom wanted to do this more and yet never do this for Scots people, or straights, or the right-handed? This would all be perfectly legal, even under the Civil Rights Act of 1964. It’s legal under state laws and city ordinances right up until today. It’s legal even if she bakes enough cakes each month to reliably pay her rent, pay her gas and electric bills, and buy some non-cake food.

Wait, what? That’s legal?


But wait, so what do those non-discrimination laws do, exactly?

They prevent businesses from discriminating. But wait, how is that different? Businesses are run by people right? Doesn’t that require people to operate without discrimination?

Well, sure, on a practical level it requires some human to operate without discrimination. But it doesn’t specify which person need do that. Let’s imagine a bakery whose baker hates gay sex so much that making a cake for a gay wedding leads to intolerable, intolerable thoughts about what if someone thinks that they don’t hate gay sex and maybe even thinks they’re the kind of person who would say no to gay sex in a reasonable manner, why they might actually hit the baker up for a date! If the business takes the order, does the baker have to bake the cake?

In a word, no. The bakery can hire another baker, possibly part time, only for cakes tainted with imaginary gay orgasm-semen. The bakery can also make a deal with another bakery where any orders for super-gay wedding cakes will be fulfilled by the non-hateful bakery (it can even be reciprocal with the super-gay-cake bakery taking orders for Westboro Baptists that are fulfilled by the hateful bakery). Like an iPhone that sends texts through iMessage sometimes over WiFi and sometimes over a cell network without bothering to inform the end user which part of which network did which part of the work, the consumer is served without any awareness of how it happened.

Okay, but the Super-Gay GayMen could still have just gone to another bakery, right? Well, sure, but we’ve seen where publicly tolerating discrimination leads. Allowing an individual baker to decline to use that individual’s talents to create a SuperScarySuperGayCake contaminated with SeminalThoughts™ in no way means we’re required to allow “No Gays” signs in shop windows. Privately permitting space for freedom of conscience is different than endorsing specific decisions flowing from freedom of conscience. There are times when the government might wish to endorse such decisions, but also times when it might not wish to do so. Since we have a lot of experience with how bigotries play out when majorities (of people or sometimes just power-majorities) have their bigotries institutionally endorsed, many national, state, and local governments have made decisions to prohibit this public, institutional discrimination.

Okay, you say, but what if you’re a super-hateful jerkface and you’re so hateful and/or so business-and-law ignorant that subcontracting is not an option? Shouldn’t that person’s freedom of conscience be tolerated, too? I mean, what if there’s a bakery business with only one employee? Would you ultimately be requiring that employee to perform SuperGayFavoritism?

In a word: no. There are no bigots of which I’m aware that claim protection from creditors as a constitutional right. Remember my mom and the idea of a private person doing some discriminatory cake-baking from above? There’s a reason for that. When you set up a company, the entire fucking point of that company is that it is not you. Legally, that company is a person of its own. It has its own debts, so that when your business takes out a business loan from your friendly, neighborhood credit union and pays you a salary of 250k per year as the only employee and then your business goes bankrupt after 2 years because you never go out and hustle up any business and the loan money has run out, you keep the 500k your business paid you and the credit union is completely out of luck. Your business is not you. That is literally the entire point of having a business in the first place.

So if you want to discriminate as a person, feel free! If your business wants to discriminate, it can’t, because the business is not you and does not want what you want. If you want to be the only person working for your business and then complain off work hours about the fact that this requires interacting with the SuperGayest SuperGays in your entire state, feel free! First amendment, baybee! But if, as the only person working for your business you, on behalf of that business, do some fun discrimination during your work hours, your business is screwed! Fortunately, you are not screwed, because you are not your business. If your business ends up unable to pay its bills because of fines, no one can take money out of your personal bank account. They can’t take your property. You are fine even if your business dies, because you are not your business. Again, that is the entire point of having a business.

So then, where is the freedom for a baker who looks at the white frosting on a SuperGaySuperWeddingCake and wants to throw up because that baker can’t stop thinking that the frosting looks like whipped semen?

Well, you can work for a business large enough to have multiple bakers. You can have your own business, with yourself as the only employee, but subcontract out the SuperGay stuff.

You can even, and this will blow your mind, set up a private club and with the club selling cakes only to members. If the purpose of the club is to provide camaraderie and safe space for people who hate thinking about GaySemen so much that they have to tell everyone that they meet how much they hate the GaySemen, then in many, many jurisdictions (depending on the exact nature of the club) you can exclude anyone who doesn’t hate GaySemen, and your bylaws can specify that getting SuperGayMarried is sufficient evidence of not hating the GaySemen to kick a member out even before the cake is baked.

Or – and get this! – you can do what my mom did a couple times, but do it lots and lots of times: you can choose not to create a corporate entity and just do the baking yourself. Fun fact: you do not need to be a business to rent a space for your industrial-scale baking! You can rent a separate space from your home, if you like. Or you can do your baking in your home if you like. You can use word of mouth or many other advertising mechanisms to communicate your willingness to make ExtremelyNonGay cakes.

Is there a consequence? Sure. Hiring others to help you may be difficult or perhaps even impossible, depending on local laws, the exact nature of your business, and certain other details. If the private club trick works in your area, then the hiring will be easier and you can probably even limit your hiring to club members, if you so desire.

But the end result is that nearly all of these laws regulate businesses, not individuals. If you choose not to incorporate a business, there are many ways to get around them. So you get to discriminate, it’s just the corporation that doesn’t. Personal discrimination, yes. Institutional discrimination, no.

In the end, the government is offering you a deal: if you agree under penalty of fines to your business to ensure your business abides by laws and regulations that include, among other things, non-discrimination, we will protect your personal money and property against the claims creditors may have against the business. We, the government, will treat you and your business as entirely separate, which provides you with a certain freedom from worry about economic risks undertaken by the business, which encourages more economic activity, which financially benefits everyone in the community and may even contribute a small trickle to the benefit of the entire country. Remember, of course, that this benefit which we, the government, provides is only worth it to the community if you don’t use your power for evil. We have decided discrimination and dumping arsenic in the drinking water are evil. We decided that after seeing the consequences of discrimination and of arsenic in the drinking water. So if your business wants to do those things, we will fine it until  it stops, even if that means it stops because it runs out of money and dies its economic-entity death. If you personally want to do these things, maybe think about no setting up a business and wasting everyone’s time, not to mention the credit unions funds, okay?

So that’s it. To belabor the point: individual discrimination, fine. Institutional discrimination, not okay.

The bigoted bakers are trying to have their cake and eat it too: they want the benefits of formally incorporating a business with none of the disadvantages. They don’t get that. They can choose not to create a business, or choose to create a business that doesn’t make wedding cakes, or choose to create a wedding shop that subcontracts out the SuperGayStuff, or choose to create a wedding cake club. They can also choose to bake wedding cakes without the protections a business provides. In all those cases, the baker that founds (or doesn’t) a business or club has been provided social room to discriminate. The institution which is the legal corporation – if the baker has chosen to create one – does not. This is a trade off which the baker is not forced to make but can freely choose, using the conscience that even bigots supposedly have.

So please, if you are ever someone who has worried about where the space is for respecting freedom of conscience or religion or expression without actually knowing anything about the numerous carve-outs the law provides for respecting freedom of conscience or religion or expression, do everyone a favor and either educate yourself on the law or stop making such idiotic arguments. Attempting to maintain a nuanced, both-sides-have-merit position doesn’t help if you don’t actually know what the positions are.

In this case, the baker-bigot is claiming that the corporation, whose entire purpose in existing is not to be the baker, cannot be fined by a regulatory agency because if that occurred the baker’s freedom to bake would be limited to only those situations where the baker takes responsibility for their own damn actions and their own damn debts. Or where the baker starts a club and still sloughs off responsibility for their own damn actions and debts. Because the government clearly has it in for bakers.

This is not a serious position. This is not a position with any merit. This is not a situation in which there is no possible accommodation for the baker’s religious beliefs. This is the baker asking, “Can I hate The Gays?”, the government answering, “Sure, hate on the gays if you like,” the baker then following up, “Will you still help me keep all my money safe if I default on loans or taxes or dump arsenic in the water poisoning thousands who bring huge lawsuits against me and pissing off the regulatory agencies who then want to fine me?”, and the government concluding, “No. You can have one or the other. We’ll make sure you get to keep all your money after poisoning thousands if you create a business, but the business can then be fined for discrimination. Or you can do all the discrimination you want under protections for freedom of association and religion, but we’re not going to give you the status and endorsement of being a legal institution. You can’t have both,” to which the baker then responds by imitating the only Edvard Munch painting anyone actually remembers and calling out, “I have ALL THE OPPRESSIONS!”

For Freud’s sake, people. The baker is a bigot and the baker’s lawyers are either bigots or idiots or both. The fact that this case is taken seriously is not evidence that there is not enough room for individual conscience in our non-discrimination laws. It’s evidence that we have bigots on the supreme court so both the media and the lower courts have to take seriously the idea that SCOTUS is going to come up with some jerkwater excuse about how discrimination against the SuperGay because you don’t like thinking about some SuperGay boinking some other SuperGay is totally a different thing from discrimination against Black folk because you don’t like thinking about some SuperBlackMan boinking some LilyWhiteWoman even though the legislative wording preventing each is exactly the fucking same.

So please, if this question is making you uncomfortable, complain about the bigots on SCOTUS. Don’t complain about how there simply isn’t any room for individual opinion and freedom of conscience anymore. You make yourself look terribly uninformed when you do that.



  1. says

    I think the bakery is the perfect case* for the religious right to get normally sensible people to support their hateful agenda. Because, well, it’s just a cake, ffs, right? There are probably 10 other bakeries and wouldn’t LGBTQ people prefer to patronise LGBTQ friendly businesses anyway? That’s their invisible hand of the market.
    They point to Jim Crow and say “but that was the government forcing poor business owners to segregate, forgetting that Jim Crow wasn’t just laws, but also social rules and that “the government” was not actually an alien entity imposing rules from the outside but the regulatory exercise of power by a bigoted majority.

    BTW, Germany sadly sets a pretty good example why it is wrong to let companies discriminate. As you may know, thanks to a contract between the Vatican and (Hitler) Germany, the both big churches get pretty big advantages. One of them is that their businesses are allowed to discriminate when it comes to hiring**, not just in their core business, but also in hospitals, schools, etc. There is not one secular hospital left in my home town, all having been sold to religious corporations, which means that a non-christian nurse used to have quite some troubles finding a job. That’s 35% of the public barred from quite some sector of the economy. Closely held personal believes my ass.

    *Many people forget that the bakery didn’t just not bake the cake but also set a hate mob on the couple.

    **Thankfully something that has been pushed back by both the ECHR and a shortage in staff

  2. Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden says

    There is not one secular hospital left in my home town, all having been sold to religious corporations, which means that a non-christian nurse used to have quite some troubles finding a job. That’s 35% of the public barred from quite some sector of the economy. Closely held personal [beliefs] my ass.

    yeah, that’s pretty fucked. I wish I had hope to offer, but I know nothing about German law or politics. Feel free to keep me informed about changes or any reading you think might interest me. In the US, btw, religious hospitals often do find ways to discriminate in a certain amount of their hiring. Even where they don’t, however, they’re taking government health care dollars, making a large profit, and then handing that over to the church to use in fucking people over. Obviously that’s not a good thing even when no discrimination is involved. I don’t want to ban churches from setting up hospitals, but I really wish that we could do a better job of providing non-religious health care in the US.

  3. says

    Well, the big change in German christians hospital hiring practices seems to come from the fact that they just can’t get enough staff, which is partly because they treat their staff not like workers, but you know, people doing Jesus’ work and that should be compensation enough. A couple of years ago my sister decided to leave the formerly secular now catholic hospital she was working at because the conditions got so bad. She had no problems being hired by another religious geriatric home care service because they’re always hiring. Why are they always hiring? Well, her division once got into trouble because they had a staff rate of 82%, meaning that if “all staff required to do the work” are 100%, they had 82%. This was a problem because the set limit was 75%.
    She left that shitshow as well…
    Other areas are still behind, like schools and daycares.

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