I suppose if you’d told someone in Northern Ireland 25 years ago that the most contentious issue come May 2015 would be a gay cake they would have taken that future. If you’d gone back another 300 years and told John Locke he might not be so pleased, however, to find that his principle of conscience had been so abused by the people who claimed to follow his philosophy.
The Ashers refused to bake a cake that proclaimed a message in support of same-sex marriage, which they do not support, and therefore have been found to have discriminated. Yet no one would object to a baker who refused to bake a cake with the words ‘Save Ulster from Sodomy‘ on it, or something otherwise lewd or offensive (or perhaps one of the Prophet Mohammed – now there’s an idea).
All the arguments justifying this ruling so far seem to involve variations of ‘the Ashers are homophobes’, as if liberalism, like the rule of law generally, is simply there to protect people we like or agree with; or ‘they should obey the law’, as if that in itself makes it right. What it comes down to is ‘we won, you lost, we’re powerful, you’re not’.
It’s arguable that where same-sex marriage has been introduced, overall societal freedom has declined; ‘liberalism’, as John Locke proposed it, cannot function where there is both widespread social disagreement over essential things like marriage, and discrimination laws. The sensible thing might be to roll back the latter.
The paradox is that there really isn’t that much need for discrimination laws at all. They’re a 20th century method of attacking injustices that are obsolete in the modern world, for technological and social reasons. There have always been discrimination laws of some sort. The people who controlled tolls, for example, or ran the only inns for miles, could not turn down customers ‘without just cause’; this was not just about injustice but about economic stability. If a trader cannot know if he can get through a toll because the man in charge has an arbitrary dislike to him or his kind, that sort of uncertainty is bad for the economy.
But modern discrimination laws originate with the 1944 Constantine ruling, when popular West Indian cricketer Learie Constantine and his family were turfed out of the Imperial Hotel in Russell Square because some American soldiers complained. Racial segregation was enshrined in parts of the United States, but was alien to England and so the courts ruled that the hotel could not deny the Constantine family the right to stay.
Some racial discrimination laws followed in the 1950s and 1960s to combat open prejudice against West Indians, and one Tory politician in particular took umbrage at what he saw as an assault on the basic freedoms of businesses to choose. He made some speech or other in April 1968, which no one remembers.
But as societal obsession with equality has reached demented proportions the thirst for more government interference to abolish every little injustice on earth has grown, and the balance between combatting injustice and defending individual freedom has shifted.
Discrimination laws suffer from some serious diminishing returns, since it is impossible, so long as the state does not possess mind-reading abilities, to prevent employers using subtle forms of discrimination to choose people with whom they feel the most uncomfortable (as I’ve said before, the most discriminated-against group in employment are the unattractive, but ugly liberation isn’t quite a thing yet).
More concerning is that the idea of conscience has also started to give way. Conscience has to be a matter of principle, not of popularity; those happy to put people out of business because they believe them to be homophobes may find themselves part of an unpopular minority one day.
The irony is that we live in an age when two trends make such laws unnecessary; firstly, prejudice against minorities is socially unacceptable, which means that any company seen to openly discriminate on the grounds of race or sexuality would suffer anyway.
Secondly, there is this thing called ‘the internet’ which means such protections are unnecessary because consumers have far greater choice. There are plenty of bakeries in Northern Ireland but even if you live in a one-horse town you can get most services online; if one doesn’t want to make your cake, another will. In the ‘gay cake’ row, another bakery ended up making the cake. That’s the beauty of the free market, the greatest force for reducing prejudice since some Phoenician sailors first bumped into some Greeks and found they weren’t such a bad bunch after all.
Even the laws forcing B&B owners to allow same-sex couples to share a bed are unnecessary, as well as illiberal, because it would be perfectly possible for any iPhone to locate where the nearest gay-friendly B&B was, or for that matter the nearest gays-only B&B or women-only gyms or any of the other exclusionary clubs that an open society tolerates. These laws aren’t actually needed to protect anyone; they’re just there to remind everyone: ‘we’ve won and you’ve lost, we’re strong and you’re weak’.