It has become a maxim of Western society that citizens should be equal before the law. A legal system that discriminates against minorities is widely recognised as a symptom of an unjust society. But does this mean the law should be used to make society itself more equal? Since the Equality Act 2010 has been on the statute books, a number of cases have shown how the law is being used to challenge and punish discriminatory attitudes, in the name of greater equality and the celebration of diversity. Some have welcomed this as a move towards a more just society, while others condemn it as illegitimate ‘judicial activism’.

Take, for example, the Christian couple who were successfully sued in 2011 by two gay men to whom they had refused a room in their bed & breakfast. While many saw this as a victory for tolerance, some argued that the act had limited the rights of the Christian couple to choose with whom to mix or not. Since then, Christian lobby groups have argued that the provisions of the act should apply equally to protect Christians from prejudice. Apart from the fact that it may be impossible to legislate to protect everyone in society from prejudice, another more fundamental question arises: is it dangerous to use the law to change people’s minds?

Historically, changes in the law have always codified and reflected attitudes in wider society. However, rather than simply back-up prevailing beliefs, should the law start ‘taking the lead’? Racial desegregation in the US in the 1950s and 1960s certainly involved legal coercion, but it was also driven by a mass movement for equality. In the case of something like equal recognition for gay marriage in the US and UK, or proposals that corporate boards should contain a certain proportion of women, it remains unclear whether legal moves are ‘with the tide of history’ or merely promoting an eccentric, elite agenda. If the law is allowed to intrude into private decisions about whom we employ, for example, or with whom we associate or do business, we are denied the right to make these decisions independently. Is this justified in the name of equality? Or is a society in which people only decide to treat others equally because the law tells them to really an equal society at all?

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