24 Jun What do you think about Masterpiece Cakeshop owner Jack Phillips’ action & the Colorado Civil Rights Commission’s treatment of Phillips? Answer the following questions: Q1
6-1 In-class Activity
What do you think about Masterpiece Cakeshop owner Jack Phillips' action & the Colorado Civil Rights Commission's treatment of Phillips? Answer the following questions:
Q1. Do you think that Jack Phillips, the baker, wrongly discriminated against gay couples when he refused to make wedding cakes for the gay couple?
Q2. Do you think that the Colorado Civil Rights Commission requiring the baker to either (a) make wedding cake for couples regardless of their sexual orientation or (b) not make wedding cakes at all violated the baker’s right to free speech or free religious exercise?
6-3
Q. Does Corvino successfully identify morally relevant dissimilarities in the arguments by analogy in Phillips’ defense?
-It seems like Corvino believes that refusing to make a Halloween cake to any customer is a design-based refusal, while refusing to make a wedding cake to a same-sex couple is a user-based refusal.-Do you agree that this is the case?
Business Ethics Summer 2022 (1) Week 6, Lecture 2
Chaeyoung Paek
In today’s class…
We’ll see Jack Phillips’ & Jim Campbell’s arguments for the Supreme Court’s decision.
There will be an in-class activity at the end of the class.
Framing the case
Q. How should we frame the Masterpiece Cakeshop case?
Is it about unjust discrimination against gay couples?
Or is it about the artist’s right to free speech & free exercise of religion?
Jim Campbell:
“Should an artist who serves all people be able to decline to create art for an event that conflicts with his deepest convictions?” (Campbell, 1)
Campbell’s argument
P1. If Phillips were to make a cake for a same-sex wedding, he would be making art for an event that conflicts with his sincerely held religious beliefs.
P2. People are not legally or morally obligated to make art for events that conflict with their sincerely held religious beliefs.
C. Phillips is not morally or legally obligated to make a cake for a same-sex wedding.
A valid argument; sound?
Campbell’s argument
Some questions to consider:
When a baker bakes a cake for an event, are they endorsing the event?
Is a cake an artistic expression of the baker who made it?
Generally, when is a product (sold by a business) an expression of the business owner?
Exercise: Baking & Speech
Click ”6-2 In-class Activity” below the lecture video.
Click “Write Submission”; fill in your answers & click “Submit.”
This should take about 5 minutes, but feel free to take more/less time as needed.
Phillips’ argument
In his interview with NYT, Jack Phillips says that he does not make Halloween cakes or adult-themed cakes; for making such cakes does not align with his religious conviction.
He also points out that he offered to sell other items—birthday cakes, desserts, etc.—to the gay couple; it’s just that he cannot sell a wedding cake that will be used for the same-sex wedding.
Phillips’ argument
In this respect, Phillips and Campbell argue that the case should not be framed as a case of wrongful discrimination; Phillips “serves everyone, no matter their race, sex, religion, or sexual orientation” (Campbell, 1).
The motivation for this claim seems to be that Phillips will serve gay customers any of his other baked goods, just not wedding cakes that will be used to celebrate same-sex marriages.
Phillips’ argument
Jim Campbell believes that Phillips’ decision could be defended by pointing out that an artist should have the right to refuse service when their art will be used for an event that does not align with the artist’s personal conviction.
But Jack Phillips also points out that he refuses to offer certain items to all customers (Halloween cakes/adult-themed cakes), and this case in 2012 was just one of such cases.
His point is that not offering a Halloween cake to customers seems to be morally permissible; therefore, not offering a cake for a same-same wedding should be morally permissible as well.
Phillips’ argument
P1. Phillips refuses to sell Halloween cakes because it conflicts with his religious beliefs, and it is morally and legally permissible for him to do so.
P2. If it is morally and legally permissible for Phillips to refuse to sell Halloween cakes, then it is morally and legally permissible for Phillips to refuse to sell wedding cakes for same-sex weddings.
C. It is morally and legally permissible for Phillips to refuse to sell wedding cakes for same-sex weddings.
Valid; sound?
Cf. Argument by analogy
Jack Phillips’s argument is an argument by analogy.
In an argument by analogy, one draws an analogy between two cases: it’s usually the case that one of these two cases is the one of which we have quite clear (moral) intuition.
The strategy is to infer from the similarities that our (moral) intuition about one case should apply to the other case in the same way.
Cf. Argument by analogy
(ex) “Some people argue that there would be fewer mass shootings if more people had guns—especially in the kinds of places where mass shootings occur. But arguing that having more guns will solve the problem of mass shootings is like arguing that smoking more cigarettes will cure lung cancer.”
Adapted from: Stephen King, Twitter post, Oct 28, 2018, 6:02 PM, https://twitter.com/ stephenking/status/1056682753016717312
– The analogy is supposed to hold between [arguing that having more guns will solve the problem of mass shootings] and [arguing that smoking more cigarettes will cure lung cancer].
Cf. Argument by analogy
Here’s a reconstructed version of Stephen King’s argument by analogy:
P1. Arguing that having more guns will solve the problem of mass shootings is like arguing that smoking more cigarettes will cure lung cancer.
P2. It is absurd to argue that smoking more cigarettes will cure lung cancer.
C. It is absurd to argue that having more guns will solve the problem of mass shootings.
Whether this argument is strong or not depends on how strong the analogy holds.
In many cases, the strength of any argument by analogy depends on how strong the analogy is.
Phillips’ argument
A question to consider:
So, is Phillips’ refusal to sell Halloween cakes analogous to his refusal to sell wedding cakes for same-sex weddings?
Can you think of any significant differences between these cases?
John Corvino thinks that there’s a significant difference between two cases.
He argues that refusal to sell Halloween cakes can be morally justified, but refusal to sell wedding cakes for same-sex weddings cannot.
Another argument by analogy?
Another argument by analogy?
In 2014 William Jack went to Azucar Bakery in Denver and requested a Bible-shaped cake decorated with the image of two grooms with a red “X” over them, plus the following paraphrased biblical verses: “God hates sin. Psalm 45:7” and “Homosexuality is a detestable sin. Leviticus 18:22.”
Azucar’s owner, Marjorie Silva, said that she could not provide such a design; doing so would conflict with her moral beliefs about LGBT (Lesbian, Gay, Bisexual, and Transgender) equality.
She did, however, offer to make the customer a Bible- shaped cake and to provide him with an icing bag so that he could write what he wished. The customer filed a complaint alleging religious discrimination.
Another argument by analogy?
It may seem like Masterpiece Cakeshop case is similar to Azucar Bakery case; both bakers refused to offer a good that they normally offer to other customers.
But the Colorado Civil Rights Commission ruled that Marjorie Silva did not discriminate her customer based on his religion.
Q. Is it possible to make both rulings consistent?
– (Corvino) Yes!
For the next class…
We’ll see how John Corvino criticizes Phillips’ argument & how he explains the difference between Masterpiece Cakeshop case and Azucar Bakery case.
Read…
John Corvino, “Drawing a Line in the ‘Gay Wedding Cake’ Case”, New York Times
John Corvino, “The Kind of Cake, Not the Kind of Customer”
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Business Ethics Summer 2022 (1) Week 6, Lecture 1
Chaeyoung Paek
In Week 6…
In Week 5, we discussed whether MNCs that manage sweatshops in developing countries harm their workers.
Maitland: Imposing strict regulations on sweatshop labor would harm the workers more.
Arnold & Hartman: Not imposing strict regulations on sweatshop labor harms the workers by violating their basic human rights.
The point of contention is whether the business owners (MNCs) violate the workers’ rights in denying certain regulations to be imposed.
In Week 6…
In Week 6, we turn to a different question: can business owners’ rights be violated by having to serve certain customers or offer certain products? And can business owners violate the customers’ rights in refusing to serve them?
In 2012, Charlie Craig and David Mullins visited Masterpiece Cakeshop in Lakewood, Colorado, to order a cake for their wedding reception.
The owner of the bakery, Jack Philips, explained that he could not create a cake for a same- sex wedding because doing so would violate his religious beliefs; the couple left without further discussing the details.
In Week 6…
This interaction between the couple and the baker had (has?) been in the national spotlight, and the case worked its way up to the Supreme Court.
Did Philips discriminate the couple based on their sexual orientation, thereby violating their rights to be treated with dignity? Was Philips’ freedom of speech and freedom of religion violated by the Colorado Civil Rights Commission?
In today’s class…
We’ll start with the basic facts about what happened at Masterpiece Cakeshop in 2012, and the Supreme Court’s ruling in 2018.
There will be an in-class activity at the end of the class.
Case Overview
For a very brief overview of Jack Philips’ argument, see "A Clash of Cake and Faith", NYTimes Video.
For more detailed overview of the Supreme Court’s decision, read Adam Liptak, “In Narrow Decision, Supreme Court Sides With Baker Who Turned Away Gay Couple”, NYT.
Case Overview
Charlie Craig and David Mullins went to Masterpiece Cakeshop in July 2012, asking the owner, Jack Phillips, to design and create a cake for their upcoming wedding.
Phillips refused to design and create a cake for them, on the grounds that doing so violated his religious beliefs.
Craig and Mullins filed charges of discrimination with the Colorado Civil Rights Commission. The couple argued they had been discriminated against because of their sexual orientation.
Some ethical questions
Q1. Does the baker wrongly discriminate against gay couples when he refuses to make wedding cakes for gay couples?
Q2. Does requiring the baker to either (a) make wedding cake for couples regardless of their sexual orientation or (b) not make wedding cakes at all violate the baker’s right to free speech or free religious exercise?
Exercise:
Click ”6-1 In-class Activity” below the lecture video.
Click “Write Submission”; fill in your answers & click “Submit.”
This should take about 5 minutes, but feel free to take more/less time as needed.
Supreme Court’s ruling
In June 2018, the Court ruled in favor of Masterpiece Cakeshop, and Jack Phillips, on the grounds that the Colorado Civil Rights Commissions behavior violated Phillips’ free exercise rights.
The Court determined that in its handling of the case, the Colorado Civil Rights Commission demonstrated anti-religious bias towards Phillips.
Justice Kennedy delivering the opinion of the Court
“On July 25, 2014, the Commission met again. This meeting, too, was conducted in public and on the record. On this occasion another commissioner made specific reference to the previous meeting’s discussion but said far more to disparage Phillips’ beliefs. The commissioner stated:
“I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” Tr. 11–12.
Justice Kennedy delivering the opinion of the Court
“To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.”
On Supreme Court’s ruling
Many believe that this particular ruling from the Supreme Court would not be able to set any precedent.
It seems that the ruling was based on how Philips was treated by the Colorado Civil Rights Commissions.
In focusing on the interaction between Philips and the commissioners, the ruling fails to address the important questions: did Philips wrongly discriminate the couple? Was Philips’ right to exercise his religion and to freedom of speech violated?
Before we look at what philosophers/attorneys think about this case, let’s discuss what we think about these questions!
Cf. Is this still relevant?
For the next class…
We’ll see how Jack Philips defended his position and what Jim Campbell says in defense of Philips.
We’ll reconstruct Phillips’ informal argument & see whether we should accept his argument.
In the last class, we’ll see John Corvino’s argument against Phillips.
Read Jim Campbell, "The Supreme Court puts a baker's business—and artistic freedom—on the line", Washington Post.
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Business Ethics Summer 2022 (1) Week 6, Lecture 3
Chaeyoung Paek
In today’s class…
We’ll see John Corvino’s argument against the Supreme Court’s ruling.
There will be an in-class activity at the end of the class.
Two cakes, but same cakes?
| Masterpiece Cakeshop case | Azucar Bakery case | |
| What happened? | The baker, Jack Phillips, rejected to sell a wedding cake to a gay couple. | The baker, Marjorie Silva, rejected to customize the cake shaped like a bible to a customer. |
| Why did it happen? | Jack Phillips argued that selling a cake that will be used to celebrate same-sex marriage did not align with his religious beliefs. | Marjorie Silva argued that selling a cake with a message against same-sex marriage did not align with her beliefs about LGBT equality. |
| How did the Colorado Civil Rights Commision rule? | They ruled that Phillips did discriminate the customers. | They ruled that Silva did not discriminate the customer. |
| Supreme Court? | Phillips did not discriminate. | N/A |
Two cakes, but same cakes?
Although the Azucar Bakery case never made it to the Supreme Court, the Supreme Court did compare two cases.
Justice Gorsuch on two cases:
“So, for example, the bakers in [Azucar] would have refused to sell a cake denigrating same- sex marriage to an atheist customer, just as the baker in [Masterpiece] would have refused to sell a cake celebrating same- sex marriage to a heterosexual customer. And the bakers in [Azucar] were generally happy to sell to persons of faith, just as the baker in [Masterpiece] was generally happy to sell to gay persons. In both cases, it was the kind of cake, not the kind of customer, that mattered to the bakers.”
Two cakes, but same cakes?
Justice Kagan’s response:
“But that is wrong. The cake requested was not a special “cake celebrating same-sex marriage.” It was simply a wedding cake—one that (like other standard wedding cakes) is suitable for use at same-sex and opposite-sex weddings alike.”
Corvino argues that Kagan’s view is correct & Phillips did wrongfully discriminate his customers.
His argument is based on the distinction between the reason for Silva’s refusal and the reason for Phillips’ refusal.
Design-based refusal vs. User-based refusal
Corvino points out that we need to look more closely on exactly what the bakers offered to their customers in two cases.
In Azucar Bakery case, Silva offered to sell the customer a bible-shaped cake & a bag of icing so he could decorate the cake in any way he wanted.
In Masterpiece Cakeshop case, Phillips refused to sell any wedding cake, regardless of the design; he sells wedding cakes to heterosexual couples, but not to same-sex couples.
Design-based refusal vs. User-based refusal
Corvino points out that this difference makes the Colorado Civil Rights Commission’s ruling on both cases consistent.
Silva’s refusal was design-based refusal.
She did not refuse to sell the item she normally sells to other customers; she refused to sell the item with a specific design.
Phillips’ refusal was user-based refusal.
He did refuse to sell the item he normally sells to other customers; the design was not the concern.
Design-based refusal vs. User-based refusal
According to Corvino, a business owner/baker’s right to exercise discretion on what to sell would be violated if a baker cannot make any design-based refusal.
Cf. If making a cake is a form of art, then being able to make a design-based refusal is to exercise one’s right to freedom of speech.
But making a user-based refusal is to wrongfully discriminate the customer in question.
One potential objection
Q. But it is not clear whether Phillips made a user-based refusal; he said that he could not sell a wedding cake to the couple because they would use it to celebrate same-sex marriage. So it was a use-based refusal, not user-based refusal! And making a use-based refusal is morally permissible for business owners!
(ex) Torch & Gas + Arsonist
Corvino responds in two ways.
User-based refusal vs. Use-based refusal
Corvino asks us to imagine the following case:
“Suppose that there’s a fabric shop owner, who is a silkscreen artist who applies intricate colored designs to fabrics of various materials, shapes, and sizes. At the front of his store, there is an album containing images of his creations, including many beautiful scarves. A headscarf-wearing woman enters the store and peruses the album. When the owner approaches her, she explains that she wishes to purchase one of his scarves “for a new hijab.” (Note that Muslims often buy ordinary scarves and wraps for use as hijabs; they need not be designed specifically for that purpose.) The owner refuses, claiming that the sale would violate his convictions. He adds that he does not care what the customer’s religious beliefs are, and he is happy to sell her other items in the store: curtains, napkins, throws, and so on. He furthermore insists that he would not sell the requested item to anyone: He sells headscarves for non- Muslims, but he does not sell hijabs.” (12)
User-based refusal vs. Use-based refusal
About this imaginary case, Corvino says:
“It seems patently silly to deny that this shop owner refuses to sell the same items to Muslims that he sells to non-Muslims. It seems equally silly to deny that he is discriminating on the basis of religion.”
Although the owner is also using the use-based objection, Corvino points out that user-based and use-base objections collapse into one another when the “use” or activity in question is central to the identity of the user.
(ex) Fabric shop owner & Muslim customer vs. Fabric shop owner & Arsonist
User-based refusal vs. Use-based refusal
Furthermore, Corvino points out that it’s not clear whether use-based objection would be legitimate.
(ex) “A kosher bakery may not refuse to sell bread to non-Jews, who might use it for ham-and-cheese sandwiches” (Corvino, 2).
Even though the kosher bakery owner is making a use-based refusal, it seems like their objection is not legitimate.
Recap: Phillips’ argument
P1. Phillips refuses to sell Halloween cakes because it conflicts with his religious beliefs, and it is morally and legally permissible for him to do so.
P2. If it is morally and legal permissible for Phillips to refuse to sell Halloween cakes, then it is morally and legally permissible for Phillips to refuse to sell wedding cakes for same-sex weddings.
C. It is morally and legally permissible for Phillips to refuse to sell wedding cakes for same-sex weddings.
(Corvino) Not sound; (P2) is not true.
Corvino on Masterpiece Cakeshop case
Phillips will not serve Halloween cakes to any customer, but he will sell wedding cakes to some customers.
There is no meaningful distinction between a wedding cake for a heterosexual couple, and a wedding cake for a homosexual couple.
Because of this, there is a product, wedding cakes, that he sells to some couples but refuses to sell to others on the basis of sexual orientation.
All of this makes Phillips’ refusal a user-based refusal; user-based refusal cannot be morally justified.
Corvino on Masterpiece Cakeshop case
“The problem with this retort is that “gay wedding cakes” are not a thing. Same-sex couples order their cakes from the same catalogs as everyone else, with the same options for size, shape, icing, filling, and so on. Although Phillips’s cakes are undeniably quite artistic, he did not reject a particular design option, such as a topper with two grooms — in which case, his First Amendment argument would be more compelling. Instead, he flatly told Craig and Mullins that he would not sell them a wedding cake” (Corvino, 3).
Some remaining thoughts
Q. Does Corvino successfully identify morally relevant dissimilarities in the arguments by analogy in Phillips’ defense?
It seems like Corvino believes that refusing to make a Halloween cake to any customer is a design-based refusal, while refusing to make a wedding cake to a same-sex couple is a user-based refusal.
Do you agree that this is the case?
Exercise:
Click ”6-3 In-class Activity” below the lecture video.
Click “Create thread”; fill in your answers & click “Submit.”
This should take about 5 minutes, but feel free to take more/less time as needed.
Thank you!
