Property Rights, LGBT Equality, and False Dichotomies: The Gay Cake Saga Continues

by Sam Wade

The start of this month saw the UK Supreme Court make its inaugural trip to Northern Ireland to hear the final appeal of the case of Lee v Ashers Baking Company. Having had their arguments dismissed by both the High Court and Court of Appeal, the bakery would have likely viewed the hearing as something of a last stand for the vindication of what they consider to be their fundamental right of conscience and free religious expression.

The claimant meanwhile, Mr Gareth Lee, will have no doubt been eager to receive a third and final verdict supporting his contention that in refusing deliver on his request for a cake bearing the slogan “Support Gay Marriage”, the bakery, back in the summer of 2014, unlawfully discriminated on the grounds of his sexual orientation and political beliefs.

Since the inception of this notably high-profile and contentious legal contest, prominent LGBT spokespersons and organisations have generally sought to portray the conduct of the bakery as inherently discriminatory, and its prohibition therefore necessary for the safeguarding of LGBT rights. For instance, following the Court of Appeal’s ruling in the Autumn of 2016, the director of Northern Ireland’s Rainbow Project John O’Doherty went as far as to declare the bakery’s actions as amounting to “direct discrimination” against the claimant.

While I myself do in fact identify as both openly gay and wholly non-religious, I find myself unable to concur with this viewpoint. Such analysis, in my view, is at odds with the objective facts of the case, as well as certain principles which I deem fundamental to a free society, namely those of free markets, private property rights, and voluntary association.

When it comes to the facts of the case, I believe it is vital for the Supreme Court to recognise that the bakery did not in fact refuse service to Mr Lee on the grounds of his sexual orientation or political beliefs. In reality, the bakers refused to manufacture the desired product due to their unwillingness to express their creative skills and artistic talents in a way which would have conflicted with their personal religious convictions.

As offensive and as irrational as these convictions may seem to Mr Lee, they are not in themselves unlawful, and do not automatically serve to violate the rights of LGBT individuals. Veteran gay rights advocate Peter Tatchell shares this understanding, stating in the run-up to the Court of Appeal hearing that “there is no evidence that [the customer’s] sexuality was the reason Ashers declined his order.”

As for the implications for a free society, it can be argued that although an entity of the State has no right to discriminate against anybody (as was the case with the infamous Jim Crow laws), the situation is different when it comes to a private business entity such as a bakery. Since a private business is operating on its own private property in use of its own private resources, the State therefore lacks the legitimate authority to dictate how it operates as a business except in cases of theft, fraud, and violence. For it to do so amounts to nothing less than a violation of private property rights, the very rights which the State ought first and foremost to be protecting.

Eminent 20th century philosopher Ayn Rand eloquently affirmed such an understanding in her assertion that “No man has any claim to the property of another man. A man’s rights are not violated by a private individual’s refusal to deal with him.” The fact that current UK legislation fails to uphold such means that in practice the rights of all individuals are consequently eroded, not protected, as rights belong principally to individuals and not to any socially-defined group.

The freedom of the Christian baker is thus equal to that possessed by the gay customer; to suggest there exists some inherent conflict between the two gives rise only to a false dichotomy, a distinction without basis in reality.

Furthermore, for capitalism and markets to function properly, private commercial relations must be entered into voluntarily and on mutually agreeable terms, with no individual being made subject to coercion. The only alternative to this is a society in which nobody’s right to act as an independent, autonomous trader is protected, a defining feature of totalitarianism.

Immorality does not necessarily give rise to illegality, and I believe that far more effective, dignified ways of combating bigotry exist. Opponents of the bakery should by all means speak out against its backward practices, and perhaps instigate some sort of organised boycott or protest, but they should know better than to resort to force. In the words of economist David Friedman, “the direct use of force is such a poor solution to any problem, it is generally employed only by small children and large nations.”

It is thus my hope that the Supreme Court, in its upcoming verdict, will give priority to the interests of individual freedom and property rights, and uphold the right of all private traders to operate on their preferred terms.  In so doing I believe it can set a precedent affirming the necessity of free markets, private property rights, and voluntary association for the formation of a legal culture marked by a shared commitment to the equal freedom and rights of all individuals.

For it to do anything less would serve only to reinforce the current trend towards greater authoritarianism, a trend of benefit to no one, minorities or otherwise.

Picture: Pexels

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