The mythical conflict between freedom and non-discrimination

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Should businesses have the right to refuse service where the service contradicts their religious beliefs? Renae Barker considered the issue in a recent article in The Conversation, referring primarily to the case of the Northern Ireland bakery which refused to bake and decorate a cake with the words “Support Gay Marriage”, which has been dubbed “Cakegate“.

This sort of conflict between (typically small) businesses refusing services to gay weddings and the like, is astonishingly common. Barker lists some other instances, including the English guest house which had to pay damages when they refused to rent a shared room to a sex couple; a case currently underway in Oregon where a bakery declined to provide a wedding cake for a gay couple, and in Australia, Christian Youth Camps breached equal opportunity laws when they rejected a booking from a group to “run a suicide-prevention camp for same-sex-attracted young people.”

I could also add a number of extra US cases to this list, including the Colorado baker which was court-ordered to make cake for a gay wedding; the Washington florist who breached anti-discrimination laws for refusing to provide flowers for a gay wedding, and the New Mexico case which found that wedding photographers are now “compelled by law to compromise the very religious beliefs that inspire their lives.”

Barker argues that there is a “quest to find a balance” between the conflicting rights of exercising religion, and of the gay community to be free from discrimination. However, this misses the fundamentally different nature of the “rights”. Religious liberty exists in the personal sphere, and simply requires that the state does not intrude. The claim to non-discrimination is the opposite – it requires the state to step in and force disagreeing parties to comply. In all the above cases, the government assisted the complaining party in enforcing the right to “non-discrimination”. It is deeply illiberal.

In response to the Christian Youth Camps case in the Victorian Supreme Court, Daniel Hickman of the Melbourne Catholic Lawyers Association said the legal community “seem to see religious freedom as a subsidiary right and non-discrimination as a primary right.” From the evidence, it is hard to disagree.

It also destroys the concept of freedom of contract. A free market depends on the ability of buyers and sellers to freely and willingly choose who to do business with. Advertising your services is not an offer to which a respondent is entitled to receive. The case of Fisher v Bell [1961] held that goods displayed in window with a price affixed were merely an invitation to the customer to make an offer. This is the ideal approach, as the proprietor still retains the power to manage who he conducts business with.

Early legal principles strongly supported freedom of contract. In the 1875 case of Printing and Numerical Registering Co v Sampson, the Judge said;

It must not be forgotten that you are not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because if there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by Courts of justice. Therefore, you have this paramount public policy to consider—that you are not lightly to interfere with this freedom of contract.

Unfortunately, this attitude has been lost, with more and more legislation added to the books, undermining contracts. Even worse, this has come at the expense mostly of religious liberty.

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