Business ethics week 6 in-class activity
Cooper2021
6-3.pptxBusiness 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!
