Religious protection? Why not political one?

WELLINGTON, NEW ZEALAND - AUGUST 19:  Two Lego men decorate the top of Paul McCarthy and Trent Kandler's wedding cake prior to the reception at Martin Bosley's on August 19, 2013 in Wellington, New Zealand. Australian gay couple Paul McCarthy and Trent Kandler were flown to Wellington by Tourism New Zealand in a promotion to highlight to Australians that same-sex marriage is legal in New Zealand.  (Photo by Hagen Hopkins/Getty Images)

Now that the same-sex marriage will soon be legal in Australia, the only unresolved legislative question remains is the extent of the “protection” provided to those who continue to have religious objections to the idea of the SSM. Should there be any?

Speaking strictly of marriages and weddings, it seems to me that a definite legal protection should be offered to ministers of religion to save them otherwise from officiating the same sex marriage ceremonies, which would go contrary to the tenets and beliefs of their religion. Marriage, as defined by the legislation, is a civil act and nothing in the Marriage Act should be read to give anyone the right to, say, a marriage conducted according to the Catholic or the Jewish rites. If you want to campaign for the change in the religious definition of marriage that’s your business and good luck to you, but it’s not up to the power of the state to aid you in that endeavour. Technically, I imagine, you could ask a Catholic priest to perform for you a civil ceremony and not the religious sacrament of marriage, but why you would want to do that apart from trolling I have no idea.

What about others, the non-celebrants, who provide nuptials-related goods and services? Should the proverbial cake-maker be exempt from making a cake for a gay wedding because his or her faith disapproves of two men or two women getting married?

There are two answers to this question.

The first one is: is it legal now to refuse service to someone based on their sexuality? If not, then the question of a wedding is an irrelevant circumstance.

The second one is: if you can have religious exemptions to discrimination, then why not others – why not political or philosophical ones? You don’t want to make a same-sex wedding cake* because the Bible tells you that a marriage is between a man and a woman, I don’t want to make a latte for an inner city socialist because I believe the ideology to be wrong and dangerous. Or historical reasons: maybe I don’t want to serve Russian or German customers because of painful family memories.

(* I’ve never been able to conceptualise what makes a same sex wedding cake – is it a perfectly normal wedding cake and the objection is merely that it will be consumed at the ceremony involving two men, or is it shaped like a giant frosted penis or the two groom figurines on the top tier are engaged in what one might consider an unnatural sexual activity?)

Either everyone is allowed to discriminate or no one is. Many, if not all, libertarians will tell you the former is a more preferable state of affairs; everyone should be able to choose with whom they enter (or not enter) into a commercial transaction or relationship – a perfect freedom of contract. I have some sympathy for this view, if only because the current laws already treat different categories of people differently.

Essentially, if you are a supplier of goods, services, or employment, by and large you are not allowed to pick and choose who you supply them to, based on criteria like gender or age or religion. However, the consumers are perfectly able to choose not to engage with a supplier on whatever grounds they consider important, including the the supplier’s political beliefs, never mind their race or other inborn characteristics.

Why is that? One could say it’s just a practical matter of identification: we know who the suppliers are, whereas the consumer can be potentially anyone and how do you even establish that X was looking for a latte but decided not to buy it at The Daily Chrenk Cafe because X disapproves of my political views (and/or maybe hates people of Polish heritage), unless X actually proudly announces it on their social media?

The consumer is allowed to boycott suppliers (and thus discriminate against them) while the supplier is not allowed to boycott customers. And while I agree with the above point about the difficulty of identification, it also strikes me that this (legal and legalised) discrimination against suppliers is at least partly based on a bleak, left-wing view of business and capitalism, namely that there is such an imbalance of bargaining power between the supplier and the customer in favour of the former that the supplier has to be handicapped in every possible way in order to redress that imbalance. But while the customer might indeed be often disadvantaged by the urgency of their need and/or the limited range of suppliers available, in real life it is often also quite true that the supplier can be equally desperate for the customer’s custom and money.

We allow the customer the freedom to take their business wherever they want, but we deny this freedom to the supplier. Thus we allow a small business to be destroyed because somebody organises a boycott (because white people serving burritos is cultural appropriation) and that’s considered to be their exercise of free speech, but we don’t allow a business to enjoy any such similar freedom of speech or choice.

Fair or unfair, this state of affairs is unlikely to change; we’re not going to see a libertarian counter-revolution radically rolling back anti-discrimination laws to allow pubs to put up signs again “No dogs or Irishmen” or to save Christian (or Muslim, for that matter) cake-makers from catering to sinners.

I suspect that most people would consider that to be a good thing. I also suspect that the religious protections we end up will be limited to non-existent. This is partly because a large minority in our society has no sympathy for religious “conscientious objectors” and would be quite happy to force a Christian cake-maker to make the bloody cake just to make the point, and another, larger, minority is so thoroughly secularised that it couldn’t care less about the principle since in practice they won’t be affected either way.

So you can have your cake and eat it too. Just don’t get indigestion.