Guest Post from Craig A. Ford, Jr., a first-year Ph.D. student in Theological Ethics at Boston College.
A few days ago on February 26, Arizona governor Jan Brewer decided to veto S.B. 1062—a bill that would have guaranteed the ability to “act or [refuse] to act in a manner substantially motivated by religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.” To let the cat out of the bag, I think this veto was a great idea. But before I get into why, it’s important to understand what the bill attempted to do. The bill attempted to specify what the free exercise of religion entailed in Arizona primarily by expanding the list of legal entities that could petition the state in cases where those entities believed that the exercise of their religious beliefs were being unfairly burdened. Prior to SB 1062, the only legal entities that could so petition were those that identified as “a religious assembly or institution.” Had the bill passed, the list of relevant entities would have expanded to include all of the following: “any individual, association, partnership, corporation, church, religious assembly or institution or other business organization.” In other words, had the bill passed, Arizona would have given the right to any individual—granting that a “compelling state interest” was not contravened—to act or refuse to act in a manner that that individual believed was consistent with his or her religious beliefs. So, had the bill passed—to give the paradigmatic example here— a Catholic business owner who believed that preparing a cake for the wedding of a same-sex couple went against his religious beliefs could refuse to bake the cake for the couple solely on religious grounds.
The interesting question for Catholics is the following: “How would that Catholic business owner have known that preparing a cake would have been forbidden by his religious beliefs?” The answer that most people give at this point is, “Though her conscience.” This answer is technically correct, but the devil, as usual, is in the details. For, first of all, there is nothing in Scriptures or the Tradition of the Church that says anything on the subject of making cakes for same-sex couples. Neither have there been any pronouncements from the Church’s magisterium on this question. What the magisterium has said is that Catholics who live in a society in which same-sex marriages are legal should enact “clear and emphatic opposition” to it, defined as refraining from any “formal cooperation in the enactment or application of such gravely unjust laws, and, as far as possible, from material cooperation on the level of their application.” One must keep in mind that the law in question is the law that permits same-sex marriages. Equally important to remember are the following considerations about cooperation with evil: one formally cooperates with evil only if one shares the intent of the so-called evildoer, and one materially cooperates with evil only if one’s action enables the so-called evil act when one also does not intend the act. There is no question of formal cooperation in the case of the business owner, since it is clear that the Catholic business owner in this case does not share the intention of the relevant lawmakers to enact same-sex marriage. The question of material cooperation is also one that needs to be answered in the negative when one thinks carefully: there is no straightforward relationship between baking cakes for same-sex couples and “enabling” same-sex unions. One could very well enact a same-sex marriage if the act of baking cakes never existed. To use more theologically sophisticated terms, the act of baking cakes does not even constitute remote mediate material cooperation with the putatively immoral act of same-sex marriage, and the reason why is because there is no conceivable causal relationship between the act of baking cakes and the enactment of a same sex marriage. (This becomes especially clear when one realizes that the principal agent in the legalization of same-sex marriage in a given state is the state’s legislature, not the same-sex couple.)
If an argument cannot justifiably be made that baking a cake for a same-sex couple constitutes even the most remote form of cooperation with evil, then what is left to do so? This is where the conscience comes in. When the Catholic businessperson claims that her conscience forbids baking cakes for same-sex couples, what she is saying is that her conscience—her moral faculty that “judges particular choices, approving those that are good and denouncing those that are evil” (CCC 1777)— tells her that baking the cake would constitute an evil act. In other words, her conscience is telling her that the act of baking a cake would constitute an evil act even though an argument for remote material cooperation with the putative evil of same-sex marriage is lacking. When one thinks of possible reasons why the businessperson’s conscience would so judge, one that readily comes to mind is the USCCB’s “protect marriage” campaign —a campaign that is problematic because of an ambiguity about how such protection is to be enacted. On the one hand, one can seek to protect marriage by avoiding remote cooperation with the putative evil of legalizing same-sex marriage; on the other hand, one can seek to “protect marriage” by expressing publicly one’s dislike towards any marriage that does not involve members of the opposite sex, even if that dislike is ostensibly grounded in Scripture and Tradition. Any appeals to the free exercise of religion on grounds that one’s conscience was determinatively informed by the bishops’ recommendation to “protect marriage” will therefore reveal a conscience informed by this conceptual ambiguity.
In either case, I should not be misunderstood: I do believe my fellow Catholics have the right to express their opposition to same-sex marriage in the public square. There are many venues by which all of us, as Americans in a civil democracy, can do this: voting is one, and appropriately protesting at relevant events is another. But when the matter comes to being able to refuse services to other people in the public square—particularly when those services aren’t established to fulfill an expressly religious function—Governor Brewer’s veto signaled something important for those us striving to live the moral life that Jesus modeled for us: this veto reminded us Catholics of our obligation to show hospitality to the other, even with those with whom we disagree. This hospitality, moreover, is all the more imperative for Catholics to demonstrate towards others when certain actions of Catholic business owners do not even constitute material cooperation with any putative evil. This hospitality becomes vital when we reflect on how we ourselves would feel unfairly treated by a business owner who, only on the basis of his or her religious beliefs, refused to serve Catholics. Finally, this hospitality is essential when, following E.J. Dionne’s helpful piece in Commonweal, we realize that religious liberty was instituted to protect our country’s dedication to pluralism in the public square, not to diminish it—which is exactly what SB 1062 would have done had it passed.
These observations will not be welcome news to Catholics who feel that their consciences demand that they not participate in the public square in such a way that everyone—regardless of religious creed—can conduct commerce with them. They will insist that free exercise of religion will involve being able to conduct business with those with whom they choose so to do. I am reminded, however, of the words of Jesus that tell us that there is no righteousness in loving only those who already love us (Luke 6:32). And what better way is there for Catholics to show love to those in the commercial public square than by showing the hospitality of welcome to all whom we meet? After all, even Elizabeth Scalia does not deny that Jesus might have baked the cake for the same-sex wedding. With hospitality as our guide, let’s bake away.
 One could argue that the act of baking a cake for a same-sex couple results in the negative consequence of “promoting” same-sex marriage. One, then, might be able to argue that, in such a case, one engages in remote mediate material cooperation with the legalization of same-sex marriage. I still do not think this is the case; but even assuming that it was, the good consequences of showing hospitality to the other would drastically “outweigh” the “bad” consequences of promoting same-sex marriage, as I will show below.
Craig A. Ford, Jr. is a first-year Ph.D. student in Theological Ethics at Boston College. His research interests include articulating intersections between queer theology and the Catholic moral tradition. Prior to coming to Boston, he studied at Yale Divinity School and the University of Notre Dame.