Liberty and the right to discriminate

In a free society do pubs or hotels have the right to turn away gays, or blacks, or Jews? UKIP and James Delingpole oppose prejudice but believe people should have the right to discriminate. We think they are wrong and that you can derive anti-discrimination legislation from impeccably libertarian principles

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What would Lady Liberty say?
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the commentator
On 30 April 2015 09:34

What happens when a free society has to decide whether one person has a right to discriminate against another, particularly where religious and lifestyle sensibilities intervene?

The short answer is this: an almighty row. That was what transpired on Twitter and other social media yesterday when Alexandra Swann published a piece on The Commentator entitled UKIP's Christian Soldiers.

Swann's piece was a critique of a recent policy announcement by UKIP which appears to allow for discrimination in the workplace and elsewhere when Christian religious beliefs clash with homosexuality.

The debate has been going on for some years now. The writer James Delingpole chimed in in opposition to Swann, helpfully referring readers to a piece he wrote back in 2011 concerning a Christian Bed and Breakfast outfit which was successfully sued after refusing a gay couple a night's accommodation.

Delingpole was, and remains, crystal clear in opposing prejudice against gay people. In sum, he argued in support of the B&B's owners, and against anti-discrimination legislation in general, on libertarian grounds.

Imagining a pub that put up a sign saying it wouldn't serve "dogs, blacks, Irish", social stigma against bigotry would be a sufficient deterrent to the proliferation of prejudice.

"And if the pub were prepared to brave that social stigma?," he asked, "Well, fine. It's a business, not a government outreach programme. It's not spending taxpayers' money so why shouldn't it be able to choose its clientele based on whichever criteria it wishes, be it class, race, looks or a strong interest in trainspotting?

"If the discriminated-against minority is offended, well, tough. There are plenty of other establishments out there catering to the needs of any number of minority interests. That's what's great about the free market: somewhere out there, there's a service designed just for you."

The state does not need to get involved.

Except that the state already is involved, and that is where Swann has a point that UKIP and Delingpole may be missing.

This comes right to the core of what classical liberalism is about. It has several aspects to it, and none of them, it needs to be admitted, are entirely clear-cut.

The first is to understand that, paradoxical as it may sound, the institution of private property is a creation of the state. In the proverbial state of nature, there is possession, but there is no property. Property is a legal concept.

In contrast to the state of nature, if someone tries to take your possessions away from you, you don't have to rely on being stronger than the would-be thief to fend him off. You have courts to protect your rights. You have law.

And for the rule of law to prevail it must enforce equality before the law in all of its rulings. It must be consistent across the board. To offer a business (a pub, a B&B, a bakery etc) the legal rights that apply in a law-based society while allowing it to violate the core principles on which the rule of law is based is self-contradictory.

In other words, you can derive anti-discrimination legislation from impeccably libertarian principles.

But does the rule of law argument then make it impossible for Churches to refuse to conduct gay marriages? Not necessarily. A Church is an institution which at core is founded upon a set of principles. In most cases, Churches oppose homosexuality on grounds of dogma. That is their right in a free society.

The Church is a house of God, and if you want to participate in its services you have to abide by its rules.

Pubs and B&Bs aren't like that. They are generalised, profit-making institutions. They serve drinks and provide beds. That's the nature of their business. Tagging on conditions about lifestyle is a matter of choice for them, in a way that it is not for a church.

These debates can become endless; with myriad hard cases that easily spring to mind. At minimum, what should be obvious by now is that the UKIP/Deligpole argument is not the only one you can make while remaining faithful to libertarian principles.

A much easier way of deriving anti-discrimination laws from libertarian principles is to invoke incitement or public order arguments. It is at least arguable that even the occasional prospect of, say, a hotel turning away Jews is so profoundly shocking and provocative in a modern society that it could lead to confrontation, up to and including violence.

Anti-discrimination legislation would thus be seen as a preemptive strike by the state to prevent a breakdown in law and order.

Finally, anyone fundamentally committed to the free society must surely have a feeling for individuals and groups that have in the recent past faced significant oppression. Anti-discrimination legislation is necessary in order to let these people know that they are welcome in the free society too.

Within the lifetimes of many contemporary Britons, homosexuals were sent to prison. One lesson of the Holocaust is how incredibly fast a supposedly civilised society can descend into barbarism where ethno-religious discrimination is allowed to thrive. Half a century ago, a white person couldn't walk into most restaurants in Washington D.C. with a black friend.

These aren't invented grievances, however much we may want to question the real motives of many on the Left who have been at the forefront of pushing the kind of legislation that we are discussing here.

In the end, and to underline, these are indeed difficult arguments. But given that supporters of freedom can derive anti-discrimination legislation from libertarian beliefs, our view is that they should.

Alexandra Swann has made a good case, and she deserves to be supported for it.

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