Question I hope you could help me with: There have been a few stories recently - both here in the UK and I think in the USA too - about bakers who refuse to bakes cakes for gay couples who wish to celebrate their weddings. What's your position on this? Some people say, "Well, it's freedom of religion, so the government shouldn't force Christian bakers to go against their consciences." People on the other side, however, say "Well, you can't discriminate based on things like race , gender, and sexuality. After all, do we really think society should allow bakers to refuse to serve women and blacks?." I also heard an atheist earlier say, "What about a baker refusing on religious grounds to bake a cake for a Bar Mitzvah or Holy Communion? Isn't that the same as refusing to bake a cake for a homosexual couple's wedding?." I have a pretty good idea of how to answer this (e.g., the Bible condemns homosexual acts not orientation, so it's not the same as discriminating against race and gender which are in-born) but would appreciate your input.
I certainly am not qualified to answer this from a legal perspective, particularly as it relates to UK law (I just don't have the faintest idea of how it works!). I can, however, philosophically evaluate the arguments as you've represented them. Specifically, I'd want to address the argument of whether or not those wanting to get married are analogous to gender or race.
As you have pointed out, there's a difference in what the Bible addresses: in point of fact, nowhere does the Bible address "orientations" where "orientation" is something like a disposition to be attracted to the same or multiple genders. But notice something even further: "race" and "gender" are taken to be things over which one has no control. Analogously, the argument is supposed to be that one's orientation is something over which one has no control. Thus, if it is unfair to discriminate based on factors outside of one's control, then certainly homosexuals apply here too. I have a number of responses.
First, it's not clear that it's always wrong to discriminate against someone for a factor over which they have no control. Let me explain. Discriminate is one of those words that has come to take on an almost wholly negative use, but if all people mean by discriminate is "to eliminate by choice" or something equivalent then we all discriminate based on a variety of factors every single day; the vast majority of these are fairly innocuous. The WNBA presumably does not allow males to compete on the basis of their gender; high school locker rooms presumably are not co-ed, on the basis of gender (though who knows, that might begin to change!); scholarships made available for people of certain ethnic or racial origins are available to them based on their ethnicity or race, and are not available to others based on ethnicity or race; the examples can go on and on. And yet, most people don't take these to be negative examples of discrimination based on race or gender, factors over which people have no control. So if negative discrimination (the bad kind) is defined as choosing against someone for a factor over which they have no control, then all of these should be viewed as paradigmatic examples. Yet they are not. This tells us there is something over and above the standard use that makes it negative discrimination. That "over and above" factor is plausibly intent or the absence of good reasons for the discrimination. If one has good reasons for the discrimination, but intends to damage the one being chosen against, then I think negative discrimination is at work. If one has a good intent, but has no good reason for choosing against someone for a factor over which they have no control, then this is plausibly an example of negative discrimination.
Second, there is a marked difference between what one is and what one does; there is a difference between the orientation and the acting on that orientation. While the homosexual may not be able to control, and may not have caused, their same-sex attraction (though this is not at all clear, it's incidental), they do control their behavior. Thus, in the context of someone asking a Christian pastor, say, to perform a homosexual "wedding," saying "no" is not discriminating against them for a factor over which they have no control. The reasoning is plainly not, "You have a homosexual desire, therfore, I will not perform the ceremony." This is because, presumably, he wouldn't perform the ceremony even if the couple-to-be both had heterosexual desires. The factor that rules out the Christian pastor performing the "wedding" is the attempted marriage, a factor over which they have complete control. The only way to argue otherwise is to argue that no one has control over their behavior, in which case even the alleged negative discriminator has no control over his/her behavior, so that to place blame on the negative discriminator is itself negative discrimination, which seems crazy.
Third, notice that many people speak out of both sides of their mouth on this issue. For example, in contexts wholly unrelated to religious freedom and homosexual "marriages," people will use "gender" as a malleable term; that is, according to many of these same people, one can switch genders, and hence, so long as all else is equal (finances and availability of doctors, for example), gender is in fact a factor over which someone has control. Of course, I don't buy that gender as a concept is so malleable, but they do. If they do, then the prohibition on gender-based discrimination, at least in the majority of the Western world (US, Canada, UK), is based on a mistake: it is a factor over which someone has control. One must choose: either gender-based discrimination that otherwise would be marked as negative has warrant that is undercut, or else gender as a concept is not truly malleable.
Finally, I'd like to go back to the first point about negative discrimination. What is happening when the Christian, asked to provide a direct service for specifically homosexual behavior, refuses? Is it negative discrimination? Let's apply our criteria. First, does he or she have good intent? Of course, we cannot know: perhaps she does have negative intent. But it's not charitable (and it's question-begging) to assume this; it's more charitable to assume they are being sincere, unless evidence to the contrary surfaces. So she doesn't hate nor is she trying to prevent the behavior of the person; she simply intends not to be the one to perform the task (the legal status of gay "marriages" is an entirely different discussion). Second, does she exert discrimination against a person for a factor over which they have no control for no good reason? No, for at least two reasons. First, the gay "marriage" to be is a behavior, and hence a factor over which they do in fact have control. Second, she has a good overriding reason not to perform the task: her conscience, informed by her religious beliefs, preclude her from taking part in the task.
So, her reason for not performing the task is not, "You are homosexuals," but rather, "My religious beliefs preclude me from taking direct part in a homosexual 'wedding,' because marriage is between one man and one woman; and this is a homosexual 'wedding,' not between one man and one woman." Note the overarching reason has only implications for homosexual behavior; it is not itself about homosexual behavior. Her religious beliefs include that marriage is between one man and one woman, and thus the discrimination is not about homosexual behaviors, but rather is an implication from other religious beliefs. This can be seen in two aspects. Suppose the woman bakes cakes. In the first instance, a homosexual comes in and orders a cake for his partner's birthday. She disapproves of his lifestyle, but makes the cake. Why? Because she's not an active participant in something that violates her religious beliefs (assuming she thinks celebrating birthdays is OK); the actions that her religious beliefs would imply to be negative are not directly related to her actions in making the cake. In the second instance, a man walks in and announces he needs a wedding cake--five of them, in fact--one for each of the women he's marrying in a ceremony. She refuses, even though the man is a heterosexual involved in a heterosexual reason, for precisely the same reason she refuses to make the homosexual wedding cake! This last part is enough for me to believe that there's just no negative discrimination going on.