This week, the Supreme Court heard the first arguments regarding Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, and as you can imagine, people immediately took to social media in order to voice their opinion on the matter. And if you pay attention to pop-culture and the mainstream news, you’ll find that the majority of those opinions ultimately end up asking “Why not just bake the cake?” After all, how could you favor discrimination if you aren’t racist or prejudiced, right?
Actually, no. As you’ll see, it’s quite the opposite.
While it’s understandable for first impressions to fall prey to the idea that because it involves a gay couple against a business, the natural response should be to back the couple against injustice. This case is not about gay rights, though. Nor is it about freedom of speech or religion, despite what you may hear on the news. This case is about property rights, pure and simple.
Let’s start with the idea of self-ownership, as most people can agree on that sentiment, and it’s not a new concept. Property in the Lockean sense, where you own yourself and, therefore, that which you mix your labor with, dates back centuries. We acknowledge that as the rightful owner, you may choose what to do with your property as well.
The most obvious example is in the selection of a sex partner, romantic partner, or marriage partner. In the case of women especially, we emphasize — rightly — that consent is critical in these matters if we are to respect a person’s ownership of her own body.
What one does with one’s body matters outside of romantic relationships also. Consent must be required for those activities as well.
But what exactly is consent?
The answer seems obvious enough, consent involves giving permission for something. But what is often overlooked, and pertinent in this case, is the question of where consent draws its value. The answer is in the capacity to withdraw it. For example, the consent a woman gives to an intimate partner has value precisely because she could’ve said no. This distinction is highlighted in cases involving alcohol, where we often point to the fact that the woman “couldn’t consent.” Which most people wrongfully conclude to only mean she couldn’t say yes, instead of also realizing the importance her inability to say no plays as well. Likewise, the idea of labor is no different. Asking someone to help you in the form of giving you their labor and the products thereof requires consent, which means the ability to say no. When consent is not present, what we’re talking about is quite literally forced labor, or worse.
Which leads me to point out just how baffling it is to see that people aren’t immediately appalled by the idea of a government stepping in to overrule a person’s consent. However, given that the state is itself an entity that operates outside the confines of civilized consent and relies on violent coercion to gain “consent,” we should not be surprised. After all, states have never been friends of consensual activities, including state support for slavery, military conscription, and taxation.
Now, there’s a good case to be made that certain types of discrimination — such as racism and sexism — are detrimental to the quality of life in a civil society. It is far less clear, however, that states should be empowered to be the final arbiters as to whether or not one’s discrimination in any given case is the good kind of the bad kind. Should the state decide “bad discrimination” has been employed, the state then abolishes free consent through its usual means of coercion: fines, lawsuits, and even imprisonment.
Totally abolishing discrimination, of course, would be impossible. Discrimination in and of itself is not inherently bad, but rather a natural occurrence. As buyers, we discriminate against sellers regularly, choosing to exclude some while patronizing others based on certain criteria. Every decision to buy something in any given moment requires not buying something else. One of the great things about the market is the influence each of us holds through our ability to “vote” with our dollars regarding business practices we deem acceptable or not. Without the capacity to discriminate, thus requiring sellers to obtain our consent in transactions, not only would we kill the internal efficiencies of the market, but we’d also become entrenched in a complete state of totalitarianism, void of any value for consent.
When it comes to someone’s personal beliefs, whether religious or otherwise, what we should do instead is practice tolerance. This doesn’t always mean we have to agree with someone, but we should always value their consent, and not violate their choices just because we disapprove, whether through government edict or not. Instead, let’s recognize that discrimination can be used as a solution. By a business spitefully discriminating against potential customers, they hurt their own chances of remaining in the market due to consumers having the ability to discriminate as well by simply shopping elsewhere. Combining that realization with the motive to avoid social ostracism by the community, and we see both buyers and sellers have an active incentive not to discriminate with malicious intent. And since the advent of the internet, the claim of having no alternative sellers (which has always been alleviated through market solutions) has been made almost completely irrelevant. With most modern monopolies being perpetuated by legislative authority, not solved by it.
Furthermore, with all the allegations of sexual misconduct recently circulating politics and pop-culture, we should seriously consider how we view consent of the individual as a culture before disregarding its value in other areas for the “greater good” of society. So then, we must ask, why not bake the cake? Simply put, because civil society ought to be in the business of upholding the importance of consent, protecting the right to self-ownership and defending the minority from exploitation, which are all principles we should be able get on board with. And when it comes to minority populations, the smallest among us will always be the individual.
