Constitutionally speaking, there is no question that a business-owner has a right to refuse service to anyone for any reason. In the absence of considerable moral hazard (the exception), this is just a no-brainer. I’d probably take this to ridiculous extremes: if a business wants to discriminate against me because of my race, that is their right. It’s their property, not mine. This is as plain as day to me. The alternative is having Nanny State adjudicate the fairness of all social and economic interactions. Sound familiar? It’s what we currently have. Do you like it? I don’t. So, to reiterate, as a legal-constitutional matter, it’s an open and shut case. Business-owners have the right; it should be protected. Fin.
Now, the unrelated religious question is this: when should these business owners use that right? A right is not the proverbial hammer before which everything is a nail. You don’t have to use your rights all of the time. You have a right to keep and bear arms (theoretically), but you don’t have to pack heat if you don’t want to. You have a right to free speech and a free press (theoretically), but you don’t have to be a journalist.
First of all, we should probably consider whether the business-owners in question have a duty to refuse service to homosexual patrons. It has been stated that because the goods in question (cakes and floral arrangements) have to do with weddings, and since weddings between homosexuals are immoral, that, yes, the putative bakers and florists have a Christian duty to refuse their services.
The problem with this, at least in my mind, is that cakes and flowers are completely extraneous to a wedding. Essentially speaking, they have nothing to do with marriage. You may as well insist that the Christian owner of a gas-station refuse to fuel up the limo that’s going to transport the gay couple from the courthouse to the reception and that his failure to do so would be a sin. Now there is a school of ethical thought that lends itself to such casuistry. Since I promised to try to be brief, though, I’m not going to get into it beyond saying that it sure ain’t Lutheran — it’s Roman Catholic. If you’d like to read a brilliant example of what it looks like in a case of concrete ethics when it’s developed to its logical conclusion, then I commend this document to you. It’s fascinating. However, it’s also highly problematic for reasons which I won’t attempt to get into now.
Strictly speaking, there’s no such thing as a wedding cake. And there are no such things as wedding flowers. Incidentally, there’s also no such a thing as a homosexual wedding. (I could take this a bridge farther and say that there’s no such thing as a homosexual, ontologically speaking, but that’s a whole other discussion.) Whatever ceremony is occurring, whatever profession of vows takes place, etc., what’s happening is not a wedding. “What God has joined together, let no man separate.” And if God has not joined it together (and in the case of a homosexual union, He has not), don’t think that a merely human joining-together is going to constitute (or even approximate) the indissoluble bond of marriage, because it is not.
Another thing we must remember about marriage is that its institution is part of the Orders of Creation — it precedes the Church. It even precedes the Fall. It is a civil ordinance in the most primal sense of the term, as the entire civitas (city) was made up of but two cives (citizens) at that time. Therefore marriage is not properly the purview of the Church but of the State. Therefore it is not quite accurate to state that a baker or florist who provides their services to a gay couple is participating in the profanation of the Divine Service. They’re not. If the ceremony is taking place in a church, and they’re calling it a wedding, then, yes, it’s profane already, and the Divine Service of that church is likely already profane if they’re the sort of church that would host such a ceremony. But even a wedding that is blessed by God in the Church is performed by the minister as a legally-vested agent of the State in accordance with divine institution and the Word of God. It could be conducted outside of the Church and still be a wedding.
In his Pastoral Theology, C. F. W. Walther writes that
Before the preacher officially consecrates a marriage, he should not only be sure that he is authorized for that function according to the laws of the state but should also familiarize himself with the laws of the state in which he is. Observing them is required for a valid and legitimate marriage, and he should proceed according to them insofar as they are not contrary to God’s word. (Pastoral Theology, C. F. W. Walther, translated and abridged by John M. Drickamer from the Fifth Ed., 1906; Lutheran News, Inc. 1995, pp. 155-156.)
Rev. Rolf Preus explains that “Walther was following Luther in this matter. As Germany was trying to extricate itself from the church/state confusion created by the pope’s intrusion into civil government’s domain, in 1530 Luther offered theological counsel to pastors on marriage matters.” Luther’s words are apposite:
No one can deny that marriage is an external, worldly matter, like clothing and food, house and property, subject to temporal authority, as the many imperial laws enacted on the subject prove. Neither do I find any example in the New Testament where Christ or the apostles concerned themselves with such matters except where they touched upon consciences. (Luther’s Works, Robert C. Schultz, ed.; Concordia Publishing House, Fortress Press, 1967, Vol. 46, p.265.)
So, really, there’s nothing wrong with selling someone a cake or some flowers. What they do with the cake is none of the baker’s business and, moreover, not his responsibility. If it’s for a gay “wedding”, then that is sad, yes, and doubly sad if the State is so blind and corrupt as to give legal sanction to the misnomer. But the Christian baker should remember that a cake is not part of a wedding and that no wedding is even taking place, regardless of what it’s being called. God is not wedding them. They are not wedding each other. That verb and its participle have nothing to do with the goings-on. They should no more be denied a cake than should fornicators, adulterers, gluttons, or the slothful or greedy. And if you want to deny all of them cakes, that’s your right. But just keep in mind that if you apply that standard liberally and honestly, your business is going to tank.
Well, that’s all I have to say on the matter right now. I’d welcome discussion in the comments if anyone is interested. I didn’t edit this at all, so please excuse my dear Aunt Sally for any inconclusive paragraphs, logic-chopping, malapropisms, etc.