Russell Nieli and Jeffery J. Ventrella have been arguing here at Public Discourse about how shopkeepers, such as bakers or photographers, should respond to antidiscrimination laws that require them to provide services at same-sex weddings when they object, on religious or moral grounds, to same-sex unions. Nieli and Ventrella agree that it would be morally permissible and even commendable for such shopkeepers to avoid violating the law by ceasing to serve all weddings, whether traditional or same-sex, or even by ceasing operations completely and finding another line of work. They disagree, however, about a third option proposed by Nieli.
Nieli suggests that it would be morally permissible for such shopkeepers to comply with the law and provide services to same-sex couples if they also announced publicly, perhaps through signs prominently displayed in their businesses, that they believe that marriage is a union of one man and one woman, that the relevant antidiscrimination laws infringe their freedom of conscience, and that they are complying with these laws only under protest and out of respect for the rule of law and the democratic process.
Ventrella disagrees, arguing that complying with an unjust law is always morally wrong and thus that any shopkeeper implementing Nieli’s suggestion would be engaged in an action that is inherently immoral. Responding to Ventrella, Nieli seems to concede that his suggestion would involve the shopkeeper in immorality, but “even if one considers conformity to an evil law an additional moral evil, a prudent person will weigh the moral harm done by such conformity against the consequences that would result from the inability to support oneself and one’s family.” Since “life often requires such weighing, balancing, and compromising,” the shopkeeper’s contributing to the same-sex wedding may be the best option, including from a moral point of view.
Sorting this out requires that we make some distinctions that both Nieli and Ventrella overlook.
Just Laws vs. Unjust Laws and Formal Cooperation vs. Material Cooperation
To begin with, Ventrella is surely mistaken when he asserts that complying with an unjust law is always morally wrong. As Aquinas says, unjust laws do not bind in conscience, meaning that a person is under no moral obligation to obey them (unless there is some special reason to do so, as when disobeying would give scandal and lead others into sin). But saying that there is no moral obligation to obey an unjust law is very different from saying that one is under a moral obligation to disobey such a law.
Indeed, a person is under an obligation to disobey an unjust law only if obeying would involve him in moral wrongdoing, which is often not the case. A tax law may impose an unjust confiscatory tax, but a man does not usually sin if he pays the tax. “Offer no resistance to injury. If anyone wants to sue you and take your coat, give him your cloak as well” (Matt. 5:39-40). Similarly, generations of African Americans who complied with manifestly unjust Jim Crow laws did nothing wrong by complying even though they were not morally obligated to do so. The reason is that there is nothing immoral in sitting in the back of the bus. When African Americans complied with such laws, they suffered injustice; they did not commit it.
So the question becomes whether a shopkeeper who complies with an antidiscrimination law by providing services at same-sex weddings is doing something immoral. Nieli and Ventrella agree that same-sex sexual conduct is wrong and thus that same-sex marriages are wrong, but the shopkeeper who provides services at a sex-same wedding is neither engaging in same-sex sexual conduct nor contracting, performing, or witnessing a same-sex marriage. Rather, he is helping or facilitating such conduct on the part of others by doing something, like baking and selling a cake, that is either good in itself or morally indifferent.
Traditional moral theory dealt with such questions under the rubric of cooperation with evil. Cooperation with evil was divided into formal cooperation and material cooperation. In formal cooperation, the cooperating agent approves of the primary wrongdoer’s wrongful action, as when a corrupt watchman intentionally leaves a door unlocked so that thieves may enter. Since the formal cooperator wills the primary wrongdoer’s wrongful action, he does wrong himself. It is always wrong to will what’s wrong, whether the agent is oneself or another.
In material cooperation, however, the cooperating agent intentionally does an action knowing that it will help or facilitate the primary wrongdoer’s wrongful action even though the cooperating agent does not approve of that action, as when a watchman, with a gun to his head, unlocks a door for a robber. Obviously, shopkeepers who object on moral or religious grounds to same-sex unions, even if they provide services at same-sex weddings, do not approve of such unions. There is thus no question of formal cooperation with evil.
The Principle of Double Effect
To be sure, such shopkeepers are cooperating materially, but material cooperation is sometimes permissible, sometimes impermissible. In particular, material cooperation is morally permissible if the action involving material cooperation can be justified under the principle of double effect: that is, an action of material cooperation with evil is morally permissible if (a) the action in itself is morally good or indifferent, (b) the agent does not intend the morally wrongful conduct of the primary wrongdoer that is helped or facilitated by his own action, and (c) the good effect intended by the cooperator is proportionate to the bad effect helped or facilitated.
In the case of the objecting shopkeeper providing services at a same-sex wedding, there is no question but that the shopkeeper’s action is in itself good or indifferent (there’s nothing inherently immoral in selling cakes, for example) and that the shopkeeper does not will any immoral effects of his action. The only question is whether any good effect intended by the shopkeeper is proportionate to any bad effect in fact arising from his action.
The proportionality analysis in cooperation cases has generally concerned such factors as the magnitude of the good the cooperator intends in performing the action constituting cooperation, the closeness of the causal connection between the cooperator’s action and the primary wrongdoer’s action, the degree to which the primary wrongdoer’s action depends on cooperation from the cooperator, and the degree of wrongness of the primary wrongdoer’s action.
Now, the good that the shopkeeper intends is undoubtedly very great: complying with a properly-enacted law, avoiding the stigma and penalties that would come from breaking the law, protecting the goodwill of his business, and earning a just profit by selling his services would each, taken singly, be accounted great goods. Taken together, they comprise a very great good indeed. This implies that cooperation in order to attain these goods will be justified unless the other factors, taken collectively, are extremely powerful.
As to both proximity and dispensability, the shopkeeper’s cooperation with the primary wrongdoer is very slight. There’s no question but that the causal connection between selling a wedding cake to a marrying same-sex couple and any same-sex sexual conduct in which they may engage is very remote. The causal connection with the couple’s action of exchanging vows and getting married is closer, but still remote. It’s not as if the shopkeeper is performing or witnessing the ceremony; at most, he is making the party afterward more enjoyable and memorable. Moreover, the shopkeeper’s cooperating action is dispensable two times over: for not only will some other baker supply the wedding cake if this baker declines to do so, but the same-sex couple would undoubtedly get married even if every shopkeeper refused to sell them a wedding cake. Cakes, flowers, and photographs are very nice accoutrements to a wedding, but they are not essential, and a great many people get married every day without any of these things.
That leaves us with the issue of the gravity of the wrong that the cooperating agent helps or facilitates. Ventrella thinks that that wrong is greater than Nieli allows. Aquinas says that sins of lust are much less serious than spiritual sins, such as pride and envy, and for that reason I would side with Nieli. But even if we assume for the sake of argument that the wrong involved is grave, the shopkeeper’s cooperation would still almost certainly be morally permissible.
The reason is that, when the good intended by the cooperating agent is great and the cooperation remote and dispensable, traditional moralists have generally said that cooperation is permissible even when the primary wrongdoer’s act is gravely wrong (at least if the act involves no injustice to a third party, which a same-sex marriage ceremony does not). Thus, Callan and McHugh, in their textbook on moral theology, state that losing “a notable percentage of one’s goods or one’s station in life,” which is pretty much the loss a non-complying shopkeeper would face, is a very great evil, and, to avoid that evil, even mediate and indispensable cooperation with a grave evil involving no injustice to a third party is morally permissible. Hence, all the more would remote and dispensable cooperation with a grave evil be permissible, and this is so a fortiori if the evil is not as serious as Ventrella makes out.
Morally Permissible Material Cooperation but an Unjust Law
While special facts may imply a different result in some cases, Nieli is generally right that a shopkeeper who objects on moral or religious grounds to sex-same weddings but who nevertheless complies with an antidiscrimination law and provides services to such weddings is acting in a morally permissible way if he does so in order to comply with a validly-enacted law, to preserve the goodwill of his business, and to make a just profit. Nor is the shopkeeper generally required to protest against the law publicly; it is enough that he does not approve of the wrongful conduct that his cooperation helps or facilitates. An exception would arise if, by complying without protest, the shopkeeper would give scandal—that is, cause another to sin by leading him to believe that the cooperating shopkeeper approved of things immoral. In such cases, the shopkeeper would have to avoid the scandal by communicating the truth to those likely to be scandalized, which could be done privately or could require a public protest against the law, depending on the circumstances.
Two final points. First, just because a shopkeeper would be acting morally if he provides services to a same-sex wedding, it does not follow that a shopkeeper who declines to do so and exposes himself to the law acts wrongly. On the contrary, such a shopkeeper acts in a most admirable way—indeed, even heroically.
Second, the fact that an objecting shopkeeper can comply with the law without involving himself in moral wrongdoing in no way implies that the law is just. By that kind of logic, when a robber puts a gun to the head of a bank manager and demands he opens the safe, the robber does nothing wrong, since the bank manager may comply without falling into sin. On the contrary, the grave injustice of the antidiscrimination laws in question, as applied to shopkeepers objecting on religious or moral grounds, is what excuses their compliance.
In coercing innocent people into helping or facilitating actions that such people reasonably think are immoral, such laws work a grave moral wrong. Those who protest such laws and seek to amend or overturn them are acting for the common good and deserve the gratitude of society.
Robert T. Miller is a Professor of Law and the F. Arnold Daum Fellow in Corporate Law at the University of Iowa College of Law and a Senior Scholar at the Classical Liberal Institute at the New York University School of Law.