Saturday, December 7, 2013

Colorado Gay Wedding Cakes - The Failure of Classical Political Liberalism ?

Yesterday a court said a baker must make a gay wedding cake.

I am not going to comment on the Judge's opinion yet . If or if not the Judge was legally correct because of certain laws that are on the books is not the point of this post.

The question is again is liberalism going out of style in the good ole USA. When I am talking liberalism I am not talking  Nancy Pelosi kinda of liberalism but the kind which is  at the heart of the enduring American constitutional order.

Law Prof Dane Crane hit this issue not long ago at Gay Wedding Cakes and Liberalism . After describing what liberalism was and how all factions in these debates are ignoring it he said :

Where are the liberals?  Where are the people willing to say: “As much as possible, let’s not decide these questions in the arena of the state.  Let’s let them play out in families, churches, religious communities, social networks, friendships, businesses, and private associations.  Let’s resist the impulse to make these kinds of divisive moral and religious questions political questions.  Let’s not fight another Thirty Years’ War.”

Let me try to preempt some likely objections with two concluding observations.

First, a liberal disposition cannot be confined to circumstances where one disapproves of someone else’s conduct but it causes no harm to others—because that’s an empty set.  It’s child’s play for lawyers, philosophers, and economists  to demonstrate that almost anything one person does affects other people.  When the baker refuses to make the wedding cake, it imposes real distress, humiliation, and inconvenience on the person requesting the cake.  Conversely, having to make the cake would impose real offense and moral indignity on the baker.  Liberalism doesn’t depend on a view that one of the parties really isn’t hurt, any more than free speech depends on a view that words can never be hurtful.  Liberalism is a disposition that says “the state must let pass these sorts of harm—they do not rise to the level of force and fraud where state intervention is justified.”

Second, to espouse liberalism isn’t to pretend that the state never has to make political judgments on issues of sexual orientation.  Since the state runs the military, it must decide whether gay people can serve in the armed forces.  Since the state regulates adoptions, it must decide whether gay people can adopt.  And there are of course other examples.  But the fact that it is sometimes unavoidable for the state to wade into these thorny issues does not justify the state wading in when it doesn’t have to.  The great project of liberalism is to strive continually for resolutions that don’t involve the state deciding divisive issues of  meaning and morality that require choosing between contending world views.  This isn’t always possible, but it’s possible much more of the time than it happens.

Calling all liberals . . .


Anonymous said...

Liberals are at the same place in this issue as they were when they were staging sit-ins at the "whites only" lunch counters. The only difference is that in those days the conservatives were claiming that their religion required them to discriminate against colored people because God had put the mark of Ham on them. Now the conservatives claim that their religion requires them to discriminate against gays because God created them to be shunned as abominations and reprobates.

James H said...

Except umm we are not talking about the right of a Eating place to throw out the gays. We are at talking about the right not to participate in a ceremony . You will find that most people that think a line should drawn here do not think a Hamburger place should just be able to throw the gay people out