Let the Wedding Cake Bakers Discriminate in Peace

Mario Rizzo*

“A Colorado judge says a baker who refused to make a wedding cake for a same-sex ceremony must serve gay couples despite his religious beliefs, a ruling that a civil rights group hailed as a victory for gay rights.”  (Fox News 12/06/2013).

Friedrich Hayek argues in his famous essay “Why I am Not a Conservative” that conservatives and socialists alike have no principled way of dealing with people whose moral views differ from theirs. Neither of them has absorbed the true lessons of toleration. Socialists (and I would add “progressives”) argue, in effect, for the imposition of their specific collective hierarchy of values including ideas about the allocation and distribution of resources in society. Conservatives often want to impose a hierarchy  of social values including restrictions on pornography, teaching of traditional values in the public schools (“creationism”), restrictions on entry into consensual social relations (“marriage is exclusively for one man and one woman”) and so forth.

Colorado cake.jpg

The classical liberal insistence on a society that makes maximal room for a pluralism of values starts with the insight that markets permit individuals to make decisions according to their own hierarchies of values. Markets do not insist that we all share the same goals about the use of resources. And yet, subject to a few basic general rules, we can have coordination (not homogenization) of values through the price system. You can work , for example, for Amazon to help pay for your child’s clothing while the manager in your Amazon division is saving for a flat screen TV; the executive working for Amazon may be working for a vacation while the senior-citizen stockholder of Amazon is using the appreciation of stock-value to pay for copays on his medicine.  And then there are all of the different goals of those working or investing in firms that deal with Amazon. And so forth as we spread our sights through the whole complex system of market interactions.

The argument generalizes in two ways. First, it applies to refusals to interact as well as agreements to interact.  Suppose I am offered $10 per hour for my typing services but I believe that I can get more elsewhere or that, at that wage, I would rather paint my home instead or, even, take a nap eschewing social interaction. I can do that. Cooperation is on my terms. I cannot be used as merely a means to the ends of others.

Second, the argument generalizes to all forms of social interaction, not just to the “economic.” After all, the economic does not apply to a domain of interaction but to all interaction under a certain aspect – choice under scarcity. So a choice between the “moral” and the “material” is a relevant expression of individual value-hierarchy in a market. If I am selling tomatoes in a free market, I can decide that my religious duties preclude me from selling them on a Saturday or a Sunday. Having elected to sell tomatoes, I am not thereby obligated to sell them at all times that may be convenient for various buyers.  

Let us continue the analysis. Does this break down at any point? Well, suppose the state has given me a monopoly of the sale of electricity. I now refuse to deal with certain potential customers because they are polygamists.  My religious beliefs are such that I find polygamy not only immoral but disrespectful toward the status of women.  (Let us abstract from any law that prohibits polygamy.) Should I be permitted to do this? No. The grant of monopoly privilege prevents others who do not share these values from selling electricity to polygamists.

In a competitive market setting where freedom of entry is respected, those who have different values regarding to whom, when, where, and how to provide products and services are given free reign.  The principle of trading on the basis of mutual consent is not compromised and yet the market opens opportunities for individuals care more about their profits than perhaps the usual prophets to trade with the polygamists.

So now to the wedding cake bakers.  A same-sex married couple wants a wedding cake. They offer to pay the baker’s standard price for the cake. He refuses because he doesn’t approve of same-sex marriage (not an entirely unheard of preference).  Just because he has consented to provide wedding cakes in exchange for a certain price does not mean that he has consented to provide his service and product always and everywhere under all conditions. Just because he is an open-for-business wedding cake baker does not mean that he can be used merely as a means to other people’s ends. He does not give up his autonomy because he has entered the market. His values do not need to fall before the socially-approved hierarchy in which his expression of religious beliefs is less important than the same-sex couple feeling bad – and having to go elsewhere to buy a cake.

My goodness – someone feeling bad and having to buy a cake elsewhere is too great a price to pay for individual autonomy and a society of pluralistic values!  What happened to “Give me liberty or give me death”? I know there are fates worse than death – but those do not include being denied the sale of a wedding cake.

Let the wedding cake bakers discriminate in peace.


*Dr. Mario J. Rizzo is associate professor of economics and co-director of the Austrian Economics Program at New York University.  He received his BA from Fordham University, and his MA and PhD from the University of Chicago.  He was also a fellow in law and economics at the University of Chicago and at Yale University.  He currently lectures for the Institute for Humane Studies and is an adjunct scholar of the Cato Institute. Professor Rizzo is also a member of the NYU Journal of Law & Liberty's Board of Advisors.