Non-Discrimination

Non-Discrimination
By Roger Scruton from the March 2011 issue

A court in Britain has just awarded damages to a gay couple against the owners of a family hotel who had refused to allow them to share a bedroom. Until recently it was normal for hotels in Britain to demand proof of marriage, before allowing a man and a woman to lodge together. Even now it is permissible for a hotel to refuse a room to a couple if one is a prostitute and the other her client. But it seems that it is not possible, even for Christians running a family hotel, to withhold a room from a couple of homosexuals. How did we get to this point, and what should we make of it?

Various statutes make it an offense for one who offers services or employment to "discriminate" on grounds judged to be irrelevant. Discrimination on grounds of race and religion has been ruled out for some time, on the understanding that our societies have to become blind to racial and religious differences if conflicts are to be avoided. The reason for this is not just pragmatic. We are heirs to the Enlightenment. Our public doctrine holds that morality is founded on humanity alone, and is therefore independent of race and religion. People believe this, even if they cannot prove that it is true.

And maybe they are right to believe it. But how do we translate that belief into law? The answer is that we do so by making racial or religious discrimination into an offense -- a civil offense, and maybe a criminal offense also. Maybe that is the only way to proceed, but it involves curtailing freedom in ways that can easily be resented. People don't always trust each other, and immigrant communities in particular, who are unsure of the surrounding world, are apt to rely on ethnic and religious ties in order to gain a foothold. They will trust people from their own racial or religious background more readily than others, and, when it comes to business, will prefer their own kind as employees or partners. Whether or not that is wrong, it certainly leads to discrimination of a kind that is now punished by our law.

Nevertheless, we have learned to live with this restriction of our freedom, since we recognize the value of a society in which racial and religious distinctions play no public role. And when, in due course, the feminist claim that women have suffered injustice in a male-dominated world became part of the public culture, it seemed natural to extend the idea of illegal discrimination to cover the distinction between the sexes too. Again, there has been a substantial loss of freedom. But, for many people, this loss of individual freedom has been more than compensated by the gain in equality. Whether you agree will depend on your situation. As things stand, much of the cost of a woman's pregnancy is borne by her employer, and he may wish to protect himself against incurring this cost by employing only men. In doing so he will breach the law against non-discrimination. Hence the law restricts his freedom. But the supporter of the law will say that such a freedom must be surrendered for justice's sake.

We discriminate between people on grounds of their height, their age, their strength, their virtue, their looks. Just when is this an injustice? And if it is not an injustice, when would it be justifiable, in the interests of public policy, to prevent it? It seems to me that the anti-discrimination legislation with which our Western jurisdictions abound has gathered momentum without any real attempt to answer those questions.

All European legislation is now subject to open-ended anti-discrimination provisions which have simply assumed that "sexual orientation" belongs with race, sex, and religion in the list of things that are to be disregarded. But disregarded when, and why? Sometimes a reference is made to "human rights," implying that to discriminate is to violate the "human rights" of the one who loses on the deal. But what about the one who gains? When an employer asserts his freedom to employ whom he chooses, is he asserting his "human rights"? And if so, is he also denying the "human rights" of the one whom he refuses to employ because race, ethnicity, or faith are not to his liking? Clearly the concept of a "human right" is doing no work here, but merely underlining the conflict.

OF COURSE, we have a commonsensical idea of relevant discrimination. It is surely right to discriminate on grounds of religion when appointing someone to be pastor of a church or imam of a mosque. There would be a grave breach of duty in those who made an appointment to a religious office without taking the religion of the candidates into account. It is reasonable to think that the sex of candidates for the position of midwife is similarly relevant, given the reluctance of most women to give birth in the presence of an unknown man, and the need at such times for womanly reassurance. It is reasonable to take age into account in candidates for a position that requires extensive training, since to train an older person for a job from which he will very soon retire is unaffordable. And so on. In all such cases common sense authorizes discrimination, since the distinctions made are essential to the job.

But should the law compel people to offer employment or services against their will, when their reluctance stems from moral or religious scruples? In a recent Californian case a husband and wife team refused to offer their services as professional photographers when asked to take pictures at the "marriage" of a lesbian couple, holding it to be against their Christian principles to attend such a ceremony. They were held to be in breach of anti-discrimination laws. The case of the British hotel keepers is similar, and shows that the law is prepared to compel people to violate religious scruples, if this is the only way to ensure equal treatment for heterosexuals and homosexuals.

In the British case the respondents argued that the hotel was their home, and that they could not allow unmarried couples to share one of their beds, whether or not they were gay. But this argument was dismissed by the judge as irrelevant. All that matters in the eyes of the law is discrimination, not how it arose. The purpose of including sexual orientation in the open-ended "non-discrimination" clauses of modern legal systems is to overcome "prejudice," to normalize homosexuality, and to make clear to the ordinary citizen that, as far as the law is concerned, it doesn't matter whether you are straight or gay. Many people think of this as a natural extension of the Enlightenment morality. Just as the moral sense, they believe, disregards differences of race, religion, and sex, so does it disregard sexual orientation. It is not simply "none of your business" that someone else is straight or gay; the matter is outside the reach of moral judgment altogether. Only "prejudice" could lead someone to behave like those British hotel keepers, and when prejudice loses, justice gains.

It is, however, much more of a prejudice to think that matters of sexual conduct can, in this way, be simply placed beyond moral judgment -- as though they were not, for ordinary people, the very essence of the moral life.

Maybe the British hotel keepers have failed to move with the times; but their "prejudice" is not some blind, dark passion like the visceral fear of albinos. It is one part of a considered religious morality that has stood the test of time. You may question this morality, and it could be that it has lost some of its former credibility. But to marginalize it in this surreptitious way is to do a great injustice to the many who have lived by it and the many who strive still to adhere to it.

THIS, IT SEEMS TO ME, shows what is really at stake in these disputes. They are not about human rights, or about the perennial conflict between liberty and equality. "Non-discrimination" clauses are ways of smuggling in vast moral changes without real discussion. Their open-ended nature, and the vagueness of their application, renders them almost immune to reasoned rebuttal. There is no knowing, from one year to the next, which of our ways of discriminating between people will be ruled out in the next extension of the law. Sex, sexual orientation, and maybe soon sexual practices -- so that the hotel keeper will no longer be able to discriminate against the person who happens to live as a prostitute. By penalizing old-fashioned morality in this way you do not make toleration of the new morality more likely. On the contrary, you sow the seeds of resentment, by removing from ordinary people the freedom to follow their conscience in a matter that deeply troubles them.

Liberals do not usually notice this, for the reason that the new society, shaped by the ideology of non-discrimination, seems to be going their way. But it could easily start to go against them, as the Islamists use the non-discrimination clauses in order to protect the segregation of women, polygamy, incitements to violence, and all the other things that Islamists claim to be demanded by their faith, and which it would be "discrimination" to forbid. It will be clear, then, if it is not clear now, that vast changes in the moral standpoint of the law cannot be smuggled in by open-ended clauses, without creating a weapon that can be used as easily by your foes as by your friends.