You have made it thus far: the wedding preparation is almost over. You enter your local bakery, cheekily anticipating the moment when you’ll order a wedding cake for ‘John & John’. But to your dismay, the baker turns you down because your marriage goes against his ‘Christian beliefs’.
This is a true story and it is a recurrent one. In 2013, Administrative Law Judge Robert N. Spencer found the owner of Masterpiece Cakeshop guilty of discrimination on the basis of sexual orientation.1 The decision was then maintained by the Colorado Civil Rights Commission2 and again by the Court of Appeal3. The Supreme Court of Colorado refused to reconsider the case.4 Analogous situations have occurred in Texas and in Northern Ireland.
Discrimination occurs, unfortunately, much more frequently than homosexual weddings. Thus it has been the object of laws around the globe. For instance, the article that Spencer chateau gonflable invokes reads:
It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, colour, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services […]. (Colorado Anti-Discrimination Act: 24-34-601, (2) (a))
In 24-34-601, discriminatory practices are defined in the context of trade within a business establishment or a public institution, but other similar laws5 apply to all trade indistinctly.
Sometimes discrimination is allowed. For instance, on safety grounds, a dwarf may be denied access to a rollercoaster and a leper may be refused a chiropractor’s massage. With this qualification in mind, we can introduce the following principle:
Non-Discrimination: A tradesman has the enforceable obligation not to refuse goods or services to clients on the basis of their disability, religion, sexual orientation, etc., unless this trait makes it dangerous for them to receive the service or possess the good.
Thereby the State should intervene, were it to recognise relevant discrimination. This seems plausible: discrimination can directly cause severe harm to individuals—harm they could not resist on their own. Allowing discrimination might also indirectly harm other individuals by giving rise to a toxic social environment.
Surprisingly, the cake story teaches us a lesson about prostitution: if the Court’s ruling is correct, then prostitution is not a job like any other.6 This conclusion follows from the inclusion of sex in the list of ‘goods and services’ mentioned in Non-Discrimination together with some equally plausible principles.
§2 describes why some have taken prostitution to be a normal job. §3 argues against this from Non-Discrimination and addresses some objections. §4 concludes.