Tuesday, 11 November 2014

The Limits of Tolerance

I've been wanting to write something about tolerance for a while now, but I haven't been able to find the right impetus to make this happen. Eventually, fate came to the rescue in this form. You'll notice that this was posted back in July, but I somehow managed to avoid hearing about until last week. Oddly, my initial reaction on hearing about this was to provisionally side with the bakery.

Now hear me out.

That doesn't mean that I supported their decision, and certainly doesn't mean that I support their beliefs on the matter. But, I did say to myself: 'Well, they have just as much a right to autonomy, to live by their beliefs, as anyone else does. They didn't want to produce a cake that supported a cause they disagreed with, they offered the customer a full refund. They didn't go out and hurt the guy, they just said "Thanks, but no thanks".' It is suggested by Gavin Boyd of the Rainbow Project that this was really about the denial of goods and services, saying that, legally, a business cannot refuse to serve a customer on grounds of their sexuality (or ethnicity, gender and so on). This is, of course, entirely true: but that isn't what happened here (that I can tell); they didn't refuse service to someone because they were not heterosexual, but because the cake was endorsing something they disagreed with.

Councillor Andrew Muir suggests that simply by producing the cake they wouldn't actually have been endorsing the campaign- not explicitly, maybe, but certainly implicitly. Suppose (I just know I'm going to regret this) a bakery produced a cake for a meeting of the National Front, or Britain First; I suspect we'd say here that they should have rejected the order, refused to have done business with them, because doing so is a tacit endorsement. Let's go further with this: what if the cake was to have an anti-Muslim slogan on it? Or a far-right emblem? (Or, to be fair, an far-left symbol?) Would we still insist that the bakery hadn't really been endorsing the campaign by producing the cake? I'm just speculating here, but I certainly suspect that in a case like this we'd say 'No, producing the cake was an endorsement.'

The reason I mention this is because this is where ideology, free speech and tolerance begin to come into contact with one another.

Before we go further, we should take just a moment to consider what is actually meant by the word 'tolerance'.


As ever, Scott Alexander put it better than I could here:

'The Emperor summons before him Bodhidharma and asks: “Master, I have been tolerant of innumerable gays, lesbians, bisexuals, asexuals, blacks, Hispanics, Asians, transgender people, and Jews. How many Tolerance Points have I earned for my meritorious deeds?”
Bodhidharma answers: “None at all”. 
The Emperor, somewhat put out, demands to know why not. 
Bodhidharma asks: “Well, what do you think of gay people?” 
The Emperor answers: “What do you think I am, some kind of homophobic bigot? Of course I have nothing against gay people!” 
And Bodhidharma answers: “Thus do you gain no merit by tolerating them!”'

I like this a lot, because it very succinctly demonstrates what tolerance is not: tolerating someone is not the same thing as esteeming someone. To make another example: I tolerate fundamentalist Christianity, but I esteem transgender people. That is, the former I disapprove of, but I think they should be allowed to practice their beliefs (NB: for as much as they're not injuring anyone else), while I have no qualms at all with gender-transition and thus I esteem it (with the same caveat above). Although I might desire that fundamentalist Christians stop being fundamentalist Christians, and might even go as far as to encourage them to do so by word and example, I would never force them to give up their deeply held beliefs. You'll probably recognise this as J.S. Mill's 'harm principle.'

To quote the man himself: 'No one pretends that actions should be as free as opinions. On the contrary, even opinions lose their immunity, when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act. An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard. Acts of whatever kind, which, without justifiable cause, do harm to others, may be, and in the more important cases absolutely require to be, controlled by the unfavourable sentiments, and, when needful, by the active interference of mankind.'

I think that we're probably happy carrying on with this definition in our hands: 'Say what you will, provided it isn't direct incitement to harm!' We would, I imagine, agree that the people who run this bakery should be allowed to distribute pamphlets and so on that state their religious opposition to homosexuality, as those who disagree with them are free to challenge them. But then the question of denial of service comes in. Is this an expression of free speech? I've already stated that, as far as I can see, this is not a matter of them refusing to serve a customer because of his sexual orientation, but refusing the order because the cake was intended to support a cause that they stood against. There are many occasions where we would almost certainly agree that a company was right to not provide service to an organisation because they disagreed with its principles, but because this is a principle that a lot of people, myself included, agree with, that there isn't anything wrong with being part of the fabulous QUILTBAG (which is so much nicer to see, hear and say than 'LGBT' in my humble opinion), we're perhaps more likely to take issue with its expression. To state the obvious, sometimes it is really, really hard to be tolerant.

An important point that needs to be made is whether or not this is a legitimate expression of free speech, or if this crosses the line into 'harm' territory. In other words: does denial of service constitute harm? Now, in some cases, yes, obviously. Refusing to serve a customer because they belong to a group you disapprove of is a harmful act, to them as people and to the cohesion of society as a whole. Did this happen here? Should they be taken to court over it? I don't know.

What is interesting in cases like this, is that we find ourselves pushing against the limits of tolerance, where we stop talking so much about the right to free expression than we talk about the values behind what is being expressed. The point I am trying to make, in a very roundabout way, is that freedom of expression is not an ideologically empty thing that we can just have, devoid of any value judgements. If we want to condemn the bakery over this, we have to make an ideological move. We have stated that our ideological beliefs, about the goodness of queer rights activism supersedes an expression of conviction that stands against it. Maybe we're right to. This can only be justified, according to the harm principle, if we can show that this is a damaging act. What would the damage be in this case? If there is any, it was damage done to the harmony and cohesion of society.

This, then, opens another can of worms: if we recognise this as harmful because it damages social cohesion, what else does? How are we to respond to it? Is 'damage to social cohesion' unhelpfully (interesting, typed 'unhealthily' there...) vague, and even dangerous?

Ultimately, most importantly for a liberal democracy like ours: 'Is the harm principle itself up to the task?'

Perhaps, we'd be better leave it there for now. We have cleared the grounds, I think, for future discussion.