What is it about cakes? John Hewson’s election campaign foundered when he couldn’t identify in simple terms how much GST would be payable on a cake. And now the debate around freedom of conscience in the event same-sex marriage is legalised is centering around the proverbial cake maker. Many fear that should same-sex marriage be legalised their freedom to practise and proclaim a religion that is opposed to same-sex unions will come to an end. Given a cake-maker in the USA was fined over $100,000 for refusing to bake a cake for a same-sex wedding the freedom of religion question is commonly put in terms of this. Should a cake maker who is, on religious grounds, opposed to same-sex marriage be obliged to bake a cake for a same-sex wedding?
First let’s acknowledge that the healthy functioning of our communities depends upon people acting with goodwill, grace and kindness toward one another even when they don’t share the same values. It seems to me that the refusal to bake a cake for a same-sex wedding is graceless, unkind, and undermines the social capital we require to have well-functioning communities. The cake maker is not being asked to pronounce his or her blessing upon the wedding. S/he is simply being asked to supply a cake. Jesus taught us that God sends sunshine upon the righteous and the unrighteous. Given God will send his sunshine upon same-sex couples being married even though, on a conservative reading of Scripture, God opposes the union, surely graciousness, generosity and kindness would mean the cake maker could do the same?
Second, the cake maker is almost certainly being inconsistent. Assuming that the cake maker is opposed to any sexually intimate relationship that is not within the marriage of a husband and wife, does s/he also refuse to bake cakes for couples celebrating their de facto unions or birthday cakes for children born out of wedlock? Does s/he enquire whether liberal amounts of alcohol are to be served at a wedding, and if so refuse to provide the cake on the grounds that s/he is opposed to drunkenness? Does s/he also refuse to provide cakes to people celebrating Islamic, Hindu, or Buddhist holidays? If the refusal is only to same-sex couples and not to other celebrations of which the cake maker disapproves, s/he is exposed as not simply opposed to same-sex unions but personally prejudiced against gay people.
But having said that, should the graceless, prejudiced cake maker be legally obligated to provide the cake? In principle I think the answer to this should be “no”. Freedom of conscience is one of the most precious human rights. Indeed, it is fundamental to a free society. We should tolerate the overriding of this freedom only where the exercise of that freedom results in the violation of other fundamental freedoms, such as the inciting of violence or exclusion from society. To refuse to bake a cake may be offensive but it does not amount to incitation of hatred or violence, nor, assuming there are other cake makers who will be happy to make the cake, does it amount to a systemic exclusion of same-sex couples from functioning in society.
At the end of the day I don’t think we should be depending upon the law to make people civil toward each other. To put the shoe on the other foot, I find fundamentalist atheists such as Richard Dawkins offensive in the ways they belittle people of faith and imply that belief is irrational, but I don’t want to live in a society where they are not free to express that opinion. The cost of freedom is that I respect people’s right to say and do things that I find utterly offensive. We should resort to law not to prevent people from offending us, but to protect our fundamental rights, such as the right to be safe and included.
Undoubtedly there are some who would seek to force the cake-maker to provide a cake. But rather than using this as a reason to oppose same-sex marriage I believe conservative Christians would do better to engage in a robust discussion with others in society about why freedom of religion and conscience should be protected and what this might look like.