To Bake, or Not to Bake, Should That Really be the Question? – The Lowdown on Liberty

Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission

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 being a woman choosing a sexual partner. Because we recognize that the woman owns herself, we realize that, at the very least, her consent is required for a sexual act not to be a violation of her property. But what exactly is consent?

The answer seems obvious enough, consent being the idea of 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, but said yes instead. 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. Had that aspect not have been present, then what we’re talking about is quite literally slavery.

Which leads me to point out just how baffling it is to see that people aren’t immediately appalled by the idea of the government weighing in as the final arbiter on consent; an entity that operates outside the confines of civilized consent on a regular basis and has a history of institutionalized offenses under their belt – slavery, military conscription, and taxation.

Now, there’s a good case to be made that discrimination based on archaic views should be looked down upon in civil society today – racism, sexism, etc. However, it is important to recognize that 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. 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. Not to mention pointing out the inconsistency of disapproving of someone’s practice, yet helping sustain their business by forcing them to take money they otherwise wouldn’t want from you.

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 was never too problematic to begin with) 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 minorities, the smallest among us will always be the individual. That’s why.

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Thomas J. Eckert

Thomas J. Eckert is the Managing Editor of Think Liberty and Copy Editor for Being Libertarian. With a passion for politics, he studies economics and history and writes in his spare time on political and economic current events. He is a self-described voluntarist.


  1. I wholeheartedly agree that the baker should have the right to refuse. However, what if we change the stakes? What if instead of a baker it was a private doctor and instead of a cake it was a time-sensitive, life-saving procedure? Some might argue that the hippocratic oath would require the doctor to intervene and thus a distinction emerges: those who have a duty to the public and those who do not. As humiliating it may be to be turned away by the baker, the cake is not essential and the harm is only psychological at worst; speech has a congruous effect and we protect it nonetheless. But just as the freedom of speech does not protect one from the penalties of perjury, the idea of self-ownership does not protect doctors from maliciously withholding their skills from a patient. Thus, I submit the following proposal for consideration, those who wish to pursue business with the public, may freely swear an oath to offer their services to the public without discriminating against protected classes and submit themselves to the laws that would govern such. In contrast, others may freely reject the oath and retain their right to discriminate at their discretion. Those who take this oath upon them could manifest some sort of emblem as a way to communicate that the oath has been taken, similar to how restaurants post their health inspection rating on the window. What would be the pros and cons of such an approach?

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