As the Supreme Court decided that it was illegal for Hazelmary and Peter Bull to refuse service to two gay men at their B&B on religious grounds, Libertarians nationwide found themselves as divided as I have ever seen. Putting a Libertarian slant on the curious case of the Bulls is no easy task. Not least because the term ‘libertarian’ has evolved to mean a whole myriad of ideologies, from those who are essentially anarcho-capitalist to the Bleeding Heart Libertarians frequently accused of not being libertarian at all. But for me, the main divide in libertarianism is a fundamental one: those that believe freedom is philosophically right and those that believe freedom creates the best society and is therefore the best option.
Of the libertarians who believe freedom is philosophically right, the freedom of the Bulls not to serve customers who are gay is entirely permissible, yet I personally believe that Locke’s Harm principle, whereby one should be free to do whatever one wants provided it does not physically harm someone else, should not be the only measure by which we judge the limits of freedom. As such, I believe defending the freedom of the Bulls to discriminate based on sexuality shows a deep misunderstanding of liberty.
Isaiah Berlin famously postulated in his magnum opus ‘Two Concepts of Liberty’ that liberty is both negative, meaning freedom from external extrusion, by the state or otherwise, in one’s fundamental rights, and positive, meaning having the resources to enable oneself to reach their full potential, i.e. I am no freer to go on holiday to America if I cannot afford to than if there is a law preventing me from doing so. In my opinion, anyone who is truly serious about the case for freedom cannot reject positive liberty on account of the fact that it may require the invasion of private property, but consider both concepts of freedom, having already made the decision that freedom is an important barometer by which to judge a society.
In the case of the Bulls, libertarians must consider whether a society must prioritise the positive freedom of the gay couple to be served as if they were any other customer, or the negative liberty of the Bulls to refuse service to whoever they wish. It is here that the great divide has appeared in modern Libertarianism in this country over the past few days. As a Libertarian myself, I am willing to concede that there must be some limit on negative liberty, and that sometimes the positive liberty of people must overcome others negative liberty. This doesn’t apply to absolute redistribution of income of course, that would be going well above the possible remit of libertarianism.
There will be many that consider this to be namby-pampy leftism haughtily disguised as libertarianism, but I can assure you dear reader that I am neither particularly inclined nor talented enough to pull off such deception. My argument stems from one fundamental point: we are all born free and equal under the law, and anything that differentiates us from one another at the point of birth should not be used as a discriminatory factor, because this would be an infringement on our inalienable right to liberty. The majority of people would agree with this: we consider society to have moved on significantly from the Jim Crow- fuelled racism of the 1950s where blacks could be denied service. Obviously being born black is not a choice, and so if we accept that being gay is not a choice, we must apply exactly the same logic to the case of the Bulls.
This is why the true stance of freedom and therefore the right and proper position for libertarians to take is accepting that the Bulls should not have the right to deny service to anyone because they are homosexual. Of course, I use the example of birth factors being the important consideration because I completely support the right of the Bulls to openly discriminate against someone who is drunk, or naked, or threatening or anything else that required a choice being made by the person being discriminated against. But in the case of birth rights, liberty should extend to everyone. And all libertarians should start to espouse that.