Most of you probably know about the case of Ashers Bakery in Northern Ireland. The bakery refused to make a cake bearing a pro-gay marriage slogan and were taken to court because of this. Today the judge ruled that the bakery is guilty of discrimination:
Giving her ruling at Belfast County Court today district judge Isobel Brownlie said: “The defendants have unlawfully discriminated against the plaintiff on grounds of sexual discrimination.” — Independent.ie
In this article I want to explain why this should be a shocking and deeply unjust judgement.
The requested image for the cake.
DISCRIMINATION AGAINST A PERSON OR A SERVICE?
Crucially, the judge has confused discriminating against a person and discriminating against a service.
Let me illustrate the difference. This is important because if this is not discrimination against a person but against a service, then, if we change the person, the bakery’s argument should still hold.
Suppose it had not been a gay man who requested the cake. Suppose it was the most heterosexual man in the world (I am imagining a Hugh Heffner type character, with 4 female supermodels in rapt attendance :P).
The bakery would have refused the cake here too; they don’t want to make a cake promoting gay marriage. Yet they cannot be discriminating against this man on the grounds that he is gay, because he is NOT gay.
Well, maybe they’re discriminating against him because he supports gay marriage? Let’s eliminate that as well: let’s suppose he’s actually a fervent anti-gay marriage campaigner. However, he has a fifth supermodel at home and it’s her birthday. He wants to get her a pro-gay marriage cake as a practical joke.
The bakery still refuses to make the cake. They’re not discriminating against the man, or his beliefs. They’re refusing to provide a particular service.
It is wrong to discriminate against a person, but it is not wrong to discriminate against a service.
For example, it would be wrong to make a birthday cake for a straight man to give to his daughter, but not make one for a gay man to give to his daughter. This is discriminating against the person.
However, it should be perfectly OK to refuse to make a cake saying “end racism now” because you want your bakery to be uninvolved in political issues. This doesn’t make you racist. It has nothing to do with the person who requested it. It is up to you what type of services your business does provide, or doesn’t provide.
In fact, I think a business should be perfectly entitled to refuse any service, on the grounds of what the service entails. They should be allowed to refuse to make cakes with messages that are opposed to their strongly-held beliefs. Or to refuse to make any with a political message. Or to refuse simply because they’re tired today and don’t really feel like working.
There is no need for strong-arm legislation to protect equality. The financial incentives for not discriminating against services (if you don’t perform a service, you lose customers and money) should be protection enough.
A BOGUS ARGUMENT
It seems to me that the judge attempted to address this point. However, her argument here is confused as well:
The judge told the court she believed if a heterosexual person had ordered a cake with graphics promoting “heterosexual marriage” or simply “marriage”, the order would have been fulfilled.
“I have no doubt that such a cake would have been provided. It is the word gay that the defendants took exception to,” said Judge Brownlie. — Independent.ie
Attempting to judge this based on individual words is completely nonsensical.
Suppose I refused to make a cake saying “Support Teenage Marriage”. Apparently this judge would say that I am objecting to the word “teenage” and am therefore discriminating against teenagers.
This is clearly untrue. I have nothing against “teenagers”; my issue is with “supporting teenage marriage”. The former is about people, the latter is a political and controversial position.
Just so with gay marriage. The bakery’s issue was not with the word “gay”. It was with the phrase “support gay marriage”.
The judge stated that the bakers must have been aware of the ongoing same-sex marriage debate. I assume, therefore, that the judge is well aware of it as well. She should be aware that it is a divisive issue, and that people are fully entitled to oppose this political position, or to not want to be involved with it.
You cannot pluck a single word out of a phrase, and judge someone based on that. It is unfair: the meaning of a single word is different from the meaning of the person’s position, as fully expressed by the totality of what they’ve said.
Picking a single word and using its meaning out of context is bogus reasoning, and it is incredible to see this reasoning being employed by a district court judge.
A LIBERAL SHOULD SUPPORT CONSCIENCE CLAUSES
I support same-sex marriage. I support it because I believe in the values of liberty, equality, and toleration. I believe these are the best values for a society which is pluralistic like ours.
If you share these values, then you should support conscience clauses as well. These clauses protect people’s freedom to not do something they are opposed to for deeply-held moral reasons. They are about recognising that people have different moral beliefs. They are about tolerating those differences and giving the people the freedom to live according to these different values.
Opposition to conscience clauses, and this judgement against Ashers, is not liberal. It is conservative. Indeed, it is the bad kind of conservatism: it is the kind which is deeply intolerant of difference, and refuses to give people the freedom to be different. It is moral authoritarianism, which attempts to strong-arm people into conformity with what one deems to be correct.
The family who own Ashers leaving the court.
WHAT THIS MEANS FOR THE REPUBLIC OF IRELAND
I live in the Republic of Ireland, as do probably the majority of the readers of this article. This case from Northern Ireland about conscience is relevant to us today and in the future.
We are currently having a debate in Ireland about same-sex marriage, with a referendum to be held on it in 3 days time.
The No side of this debate have raised concerns over what this referendum could mean for freedom of conscience. Luckily, religious organisations are protected by Irish law through recognition of freedom of religion. This means, for example, that Catholic churches will not be forced to marry same-sex couples, as this directly contradicts the doctrines of the Catholic sacrament of marriage. I am glad to see that both yes and no sides in the debate are supportive of this law.
However, the No side have argued that freedom of conscience will not be protected in the areas of business or education. They say that the government is opposed to conscience clauses for small businesses, and that this could lead to situations like that of Ashers bakery. This is extremely concerning, and should be given serious consideration, regardless of one’s voting intentions in the referendum.
Indeed, there have been countless examples of dangerously anti-liberal values and moral authoritarianism festering—and even being encouraged—during this debate. No side posters have been defaced and torn down, No side supporters have been bullied and ridiculed, and these acts have been cheered on by many people on social media.
Apparently the irony of supporting gay marriage on the basis that people should be free to live how they want and should be respected by society, while at the same time destroying No side posters—in other words, being deeply disrespectful of another group and denying them a key freedom of speech as enshrined in our democratic system—has been lost on literally thousands of people.
Interestingly, this aggression can be seen in how the tone of the No campaign has become very defensive. As the debate has progressed, different groups on the No side have produced defensive slogans along the lines of “It’s OK to vote no” and “You can make your own mind up”.
I have seen many people on the yes side laugh at these slogans as being patronising. Certainly, it is understandable that they may come across this way to a dedicated yes voter. However, it is important to look at these slogans from a neutral perspective and to examine the intended message. The intended message is not to imply that yes side voters are ignorant, but to reassure those who feel they cannot vote no that they can, in fact, do so.
And if this is the intended message, then it should be deeply worrying that the No side feel it has to be given.
Let me be clear: liberty, equality, and toleration mean that a yes vote is the best option. However, they also mean that people opposed to a yes vote should be free to express and hold this opinion, and that they should be treated with equal respect and toleration.
Far too many people on the yes side have descended into self-righteousness, and whitewashed the no side as homophobic or ignorant. This is an absolutely shameful attitude to have. This is a nasty type of liberalism which only extends liberal values to those who agree with you.
Of course, I would extend the same criticism to people acting this way on the No side as well. The reason I have focussed on the Yes side here is that while I have seen literally hundreds of examples of intolerance from the Yes side on social media, I have seen very few from the No side. (This is unsurprising, considering that the vast majority of my peers [I am 24] are in favour of a yes vote.)
Defacing posters is absolutely unacceptable.
(B) The Future
I think it is very important that liberal values be carried on through future debates in Irish society, and that conscience clauses be strongly considered in all areas of life, not just ones related to issues about homosexuality.
For example, conscience clauses will be even more important when we come to debate various bio-ethical questions again as a country, such as abortion, surrogacy, or euthanasia.
When these issues arise, I will be advocating for conscience clauses there as well. If a doctor genuinely believes that abortion is murder, as is consistent with many of the religious worldviews protected by freedom of religion, then they should not be forced to perform an abortion.
This shouldn’t be problematic: abortions are not emergency procedures, and there should be plenty of doctors available who are perfectly willing to perform them. Overriding a doctor’s conscience in this case would be a needless offence to their liberty.
In my video on same-sex marriage I argued that our consideration of liberal values needs to go further than the current referendum. Conscience clauses for medical professionals is just one example of where I think this consideration ought to go.
To sum up, the case of Ashers in Northern Ireland reflects an extremely worrying view of society, and a confusion as to what discrimination actually entails. The court has incorrectly found the bakery guilty of discriminating against a person on the basis of their sexuality, when in fact they were discriminating against the provision of a particular service. While the former is, of course, unacceptable, the latter should be unproblematic.
I support liberal values, and it is important to note that these support not only same-sex marriages but conscience clauses as well. People should not be forced to do something which directly conflicts with their morality; people should be free to live according to their values to as great a degree as is possible.
Laws or court judgements which prevent people from having that freedom are wrong. This is moral authoritarianism and is directly contrary to the values of liberty and toleration.
I was delighted to read that Mr. Paul Given was campaigning for a conscience clause in Northern Ireland. I have not read the wording of his proposed bill, but I can 100% endorse his reasoning behind it.
Mr Givan said that “Christians do not feel there is space being made for their religious beliefs”.
“The issue at stake is when you’re asked to produce a particular service,” he said.
“It’s about the message you’re being asked to endorse, not the messenger who’s asking for it. Say someone comes in and asks for a cake saying ‘I support gay marriage’ – that’s a direct form of communication you’re asking this Christian-owned company to produce and they don’t want to be forced to do that.
“I don’t think that’s unreasonable, I think that’s tolerant and if we live in a pluralist, liberal society we need to make space for difference.”
Equality provisions might reasonably necessitate restricting such freedom if a given group was totally silenced—for example, if no bakeries would make a cake supporting gay marriage there might be a case for requiring them to, in the interests of the voice of the gay community. However, this is not the case here, and it is extremely unlikely that it ever will be. In regards to businesses, the financial incentives to indiscriminately provide services should ensure that (unless it is legally prohibited) everyone has access to the service they need.
This case reveals the need for our society to examine its values more deeply. It should be a clear indication that we, in the Republic of Ireland, need to think about conscience clauses in the future of our society, and their importance when it comes to promoting a society which is truly liberal in the face of divisive social and ethical issues.
It should also call us to reflect on our attitudes towards discrimination, and our attitudes towards the current referendum debate on same-sex marriage. If we truly embrace liberal values then we should allow same-sex couples to marry. However, we should also be respectful of people who have conservative values or who disagree for other reasons.
The actions and statements of far too many people in the current debate have revealed that while they apply liberal values in the first sense, they do not apply them in the second sense. The hostility and aggression that is being shown to conservative and religious people today should be deeply worrying and distressing to anyone who truly believes in liberalism.
In conclusion, it is my hope that you will endorse freedom of conscience, and that you will join me in opposing these situations, such as the case of Ashers bakery, where this freedom is under dangerous attack.