gay wedding cake

Andrew Lilico is an economist and political writer.

When I first saw the Ashers “gay cake” ruling I thought it was bonkers.  Manifestly the objection of the Ashers was not to the sexuality of the purchaser of the cake but, instead, to the political opinion they were asked to print on it.  But then (although the detail of the ruling does contain some clearly mistaken statements, such as the claim that belief in gay marriage is indissociable from the sexuality of the believer), I got it.

The key to grasping this judgement is that the objection was indeed to the political opinion, but in Northern Ireland, unlike in the rest of the UK, political opinion is a “protected characteristic”.

Whereas in the rest of the UK you could refuse to serve “Tory scum”, that’s not allowed in Northern Ireland.  You can’t refuse to serve Unionists or believers in a United Ireland.  And you can’t try to get around that by refusing to serve people who believe or disbelieve in in the eternal virginity of Mary or in transubstantiation.

There are good and obvious reasons for including political opinion as a protected characteristic, for equalities rules purposes, in Northern Ireland.  And it’s equally obviously impractical to provide a very narrow list of the specific political or religious opinions that are to be so protected.  So a belief that the law in Northern Ireland should be changed to introduce gay marriage (which is not currently legally recognised there) must have the same protection as the belief in a United Ireland.

It’s interesting to reflect upon what makes so many people uncomfortable about the Ashers ruling.  What they seem to dislike is that it clearly removes freedom from the baker and its staff: they are not free to use their property and their labour in ways compatible with their conscience in mutually beneficial transactions with their consumers.

But that is true of all equalities legislation.  One handy thing about the Ashers ruling is that this point is so transparent in this case – the Ashers staff become forced labourers in a social cause (in this case, inter-community harmony in Northern Ireland), not free workers in a market.  But this was also true of anyone forced to employ a woman or serve a black person in the 1970s.

It is intrinsic to our not being slaves and to our property truly belonging to us that we not be forced to use our labour or our property in ways we do not want to.  All equalities rules involve forced transactions.  But such violations of private property and labour freedom can be justified, even in a free society, on two bases:

  • First, in cases akin to the commandeering of a vehicle by the police as part of a chase, or the forcing of a skilled worker to work in a munitions factory during a war or, more straightforwardly – conscription.

The state can take over your property or your labour temporarily, for some good social end, provided you get it back in due course once the social purpose has been achieved.  If it was necessary to force people to serve black people or to hire women to break through an undesirable social and economic log-jam, we could also use equalities rules to force transactions – provided that, over the longer term, once women and black people were sufficiently integrated into general commercial life that the log-jam had been broken, freedom of use of property and labour was returned (i.e: provided equalities rules were in due course repealed).  As it happens, I suspect that this standard was met for women and ethnic minorities in the UK some decades ago, and that equalities rules in respect of these categories should be repealed.

  • Second, cases in which the property-owner is a monopolist or monopsonist.  If you own the only bridge over a river for miles, you should not be able to turn people away because you dislike or disapprove of them.  If you own the only big factory for hundreds of miles and folk either work for you or starve, you should have to hire staff on a fair and equal basis.

(It is worth noting in passing that the above points are independent of the rules for conduct by the state itself: i.e, in the provision of public services or in hiring for public service jobs.  The principle of equality before the state – i.e: with regard to the law or taxation – applies in the same way to public services or publicly awarded contracts.  These can be subject to permanent equalities rules without any violation of private property or freedom of labour.)

The first category here – the “commandeering” case – is clearly the relevant case for the overwhelming majority of businesses.  But once we grasp that equalities rules exist to engineer social outcomes, and by their very nature involve violations of private property and labour freedom, we should seek to make the violations created by such rules no more oppressive than is required to achieve the social outcome we seek.

In the Ashers case, there is a fairly clear distinction that could have been drawn.  The law could (temporarily, for only as long as is required to engineer the desired change in the economic integration of communities) say that bakers cannot refuse to serve customers on the basis of their political opinions (Unionism, Nationalism, pro-gay-marriage-ism), but are not required to participate in the promotion of those political opinions (i.e: are not forced to put political slogans on cakes).

Most of us understand this distinction readily.  We recognise the difference between saying it would be okay to refuse to sell a pornographic movie-maker a watch or a lemonade, and saying it would be okay to refuse to sell him a video-camera or to edit his movie.  Again, a horse-lover might reasonably be forced to sell a member of a horse-eating religious cult a newspaper, but do we really want a horse-breeder to be forced to sell such a cult her horses?

There should be no problem with introducing such a distinction into the law.  But the fact of the matter is that there is no such distinction at present.  The Catholic adoption agencies were forced to participate in facilitating the creation of family units involving unmarried persons.  The Christian bed and breakfast owners were forced to provide one bed for an unmarried couple.  The Ashers bakery could not reasonably expect to have that distinction applied specifically to it when no such distinction applies more broadly.

It should be emphasized that the use of this distinction – between refusing to provide general services to those one dislikes or disapproves of and refusing to participate commercially in activities one believes to be immoral – would still leave private property violated and labour forced by equalities rules.  It would merely mitigate the oppression involved – rather than being an excuse for not eventually repealing equalities rules once their temporary social purpose had been achieved.

In the meantime, whilst the distinction is not in operation, one possibility might be for those that are morally compromised by forced transactions to refuse to accept payment for them.  If the law makes you a slave, forcing you to participate in activities you consider immoral, then be forced – don’t profit from them.  That might make people see, even more clearly, that equalities rules should be modified now, and abolished as soon as they have achieved their purpose.

34 comments for: Andrew Lilico: What the “gay cake” case tells us about the future of equalities law

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