Wednesday, 20 May 2015

On The 'Gay Cake' Ruling

We read this week that a judge has ruled that a Christian-run bakery discriminated against a gay customer by refusing to make a cake with a pro-gay marriage slogan. I’m uncomfortable with this particular legislation. Some people have been claiming that such a ruling is a victory for anti-discrimination proponents. The irony seems lost on them – that there is still discrimination going on – it’s just that in this case the discrimination is against the Christian couple running the cake shop.

The Christian couple’s view on homosexuality isn't one I personally share, but within reason I defend their right to choose to run their business according to their own religious beliefs and values, and in this case the State should do like-wise.

Disapproving customers are free to walk away and shop elsewhere. They are even free to share their disapproval on social media and encourage others to join them in shopping elsewhere. Such responses are powerful in business, because they put pressure on socially undesirable behaviour, and they penalise socially undesirable business owners with lost custom, diminished profits, and in extreme cases, bankruptcy.

Any law that makes it illegal to run a business according to your religious beliefs is a law that infringes on the liberties of the business owners in a way that is, in my view, socially undesirable. Saying that, however, doesn’t mean I think all anti-discrimination laws are undesirable - far from it. They just need to be applied more prudently.

As always, society involves tension between a) accommodating people's right to hold views and beliefs, and b) protecting others from unwanted discrimination. It is socially desirable for a racist café owner who wants to put a 'No Blacks' sign on his door to have black people's rights to not be discriminated against preferred over his right to display his repugnant views. But at the other end of the spectrum it is also socially desirable for another café owner to be allowed to discriminate against under 65s by offering a pensioner discount on Wednesdays and Thursdays. In this case the opposite applies - we prefer the café owner's right to introduce pensioner discounts over any societal claims that under 65s are being discriminated against.

The question the cake shop case elicits is where on that spectrum do religious views sit? Personally I think people's religious views should not be legislated against in business as to do so would be to encroach on their freedoms in ways that people in society ought to repudiate. It's quite clear to me that if the choice is between a) forcing a businessperson to make/sell a good they do not wish to, or b) compelling a dissatisfied customer to use another business, it's a no-brainer that society should prefer the latter.

Perhaps a different case will highlight this with even greater rigor. Imagine a t-shirt printing stall run by a Muslim. Along comes a bunch of EDL louts on a stag party wishing to have this Muslim gentleman print ten t-shirts depicting Mohammed drunk on lager. Would you really want to live in a society that forces the t-shirt printer to make these t-shirts for the stag party? I could spend all day thinking of similar examples, and they would all contain the same wisdom: that a society that forces people to act against their religious beliefs for the good of not offending their customers is a pretty dodgy society, and one in which most of us shouldn't want to live.

A quick comment on protected characteristics
You will see from the Equality and Human Rights Commission’s protected charcteristics page that it is forbidden to discriminate against anyone based on their race, sexuality, religion, sex, gender state, disability, age, marriage or civil partnership, or pregnancy and maternity.

The problem with this protected characteristics page is that it fails to compare like for like. A good protected characteristics list would be one based on criteria beyond the individual’s control. So for example, I can’t control my skin colour, and my skin colour has no bearing on whether I can do a job or not, so it’s understandable that discrimination on grounds of skin colour is both socially undesirable and illegal. For that reason, it would be right and proper to bring before the law a café owner who put up a sign saying “No Blacks”.

Religion, on the other hand, is a different matter. Religious belief is not something beyond our control. We choose our religious views (even if they’ve been thrust upon us from childhood), and therefore what we believe says something about what kind of person we are. If I had to choose between two people to hire, and there was nothing to choose between them apart from one was a scientologist and one wasn’t, I’d happily discriminate against the scientologist, because in my hiring criteria a candidate's failure to see that scientology is a racket could be a black mark against their potential.

For that reason it's easy to favour a law that prohibits discrimination on skin colour but at the same time repudiate a law that disallows religious discrimination. It's also worth pointing out for the record that the Christian couple running the bakery weren't actually refusing to serve someone on the pretext of their being gay - they were simply refusing to make a product that expressed something they found to be contrary to their own beliefs. A law that effectively wants to commandeer their bodies and cake-making facilities is to me far more repugnant than the offence these Christian bakers are supposed to have committed.

All that said, this is only a short blog post in which I couldn't possibly give the subject the full range of considerations it warrants.

One final point - the market does a very good job of weeding out socially undesirable discrimination
Suppose there are two countries - one with a large majority black population and a minority white population, and one with a large majority white population and a minority black population. What would be the effects of discrimination against blacks in each country? Real history will tell us the answer, because those two situations describe two real countries; the first being South Africa and the second being America.

Under South African apartheid the minority whites were prejudiced against the majority blacks, which comes at an economic cost because it restricts your business and your labour. Suppose racist Jim opened up a shop in South Africa in the 1960s but won't serve any of the majority blacks - he obviously shoots himself in the foot because his restricts his trade options to a minority few and excludes the majority of potential customers.

Now suppose racist Tom opened up a shop in America in the 1960s but won't serve any of the minority blacks - his discrimination hurts him, but not as much as it hurts Jim, because Tom is restricting his trade by less than Jim, as whites make up the majority in America in the 1960s.

In short, in a free market it pays not to unfairly discriminate, because whether on large scale or a small one you're going to limit your potential custom. The more socially undesirable your discrimination, or the more people your discrimination negatively impacts, the worse it will be for you. It is no coincidence that the time at which humans started to trade was also the time that we started to become more civilised and improved our methods of co-existence. To be able to trade in any age, and in particular, the modern age, you need to be able to think of others; firstly, by coming up with something (goods, services, entertainment) that others want; and secondly, by being honest, ethical, friendly, and developing a good reputation for your business. Far from being a vortex of selfish, uncaring and unethical behaviour, free markets necessitate qualities that make trade conducive, with your success dependent (in most cases) on your being a reputable person who welcomes all and treats everyone well.