A simple but important religious freedom case has reached the Supreme Court. Ashers, a bakery in Belfast, appealed against a £500 damages award under British and European Union laws for discrimination on sexual orientation grounds. Its owners, who are devout Presbyterians, had declined to provide a cake decorated with the words “Support Gay Marriage” to an activist wishing to celebrate Northern Ireland Anti-homophobic Week.
The main legal argument turned on whether refusing to reproduce a pro-gay message desired by a gay activist discriminated against the latter if the bakery would have refused to provide it for anyone, straight or gay; and if so, whether this compromised freedom of speech or religion as defined by the European Convention on Human Rights.
We expect a result later this year. But despite the beguiling Ulster tones of barrister David Scoffield QC on behalf of the bakery (which you can catch on the Supreme Court’s website), this is not the most interesting feature of the affair. The moral and social stakes are, in fact, higher.
Upholding the decision, and thereby restricting protection of conscience to the limited exceptions state law provides (for example, in abortion), has wide implications for religion generally, affecting Catholics as much as Presbyterians. In order to avoid suit for religious discrimination, for instance, a Catholic religious printer could presumably not refuse to produce a book of Muslim apologetics, or a Catholic screen-printer a T-shirt promoting Richard Dawkins’s The God Delusion.
More importantly, this case raises in unusually stark form the issue of how the law ought to treat individual conscience. The Catholic answer is clear. The legitimacy of the state’s call for obedience depends on its respect in return for the need for individuals to be guided by their own conscience, at least where that conscience is not opposed to morality or Church teaching. Requiring people to do or say something contrary to that conscience is unacceptable.
Unfortunately, most discrimination lawyers – and discrimination law is an area where secularism is even more in evidence than elsewhere – say exactly the opposite. Conscience for them is opposed to, and needs to be mistrusted by, the state.
As the original judge in the present case revealingly put it, she found the bakery’s plea an unacceptable attempt to “allow a religious belief to dictate what the law is”.
Furthermore, we see in the Ashers saga a bleak contrast between two different views of equality and non-discrimination. For Catholics equality is, as the Catechism makes clear, a means to the good in the form of a recognition of our common creation in the image of God. Conversely, the objection to discrimination against anyone – black, gay or whatever – is that it amounts to a denial of it. Viewed as such, there is no need for any religious or conscientious exception: it is self-evident that by refusing a person’s request to do or say something contrary to revealed truth, we are affirming, not denying, his ability to follow the dictates of right conscience.
By contrast, the predominant secular view, much in evidence in the Ashers decision so far (and shared by most legal and EU commentators), is essentially amoral and egoistic. Everybody must be given an identical right to choose how to satisfy his desires. A third party who denies this, or who refuses to do for one person what he would have done for another, ipso facto infringes that right. As for religion and conscience, these are seen as antagonistic to equality. They are accommodated in grudging exceptions, to be grudgingly applied.
But what of Ashers Bakery? A legal decision in its favour would obviously be welcome. But it would leave the broad question of conscience hanging.
If the decision goes against Ashers, any hope must lie in legislation.
Two proposals have already appeared. An initiative in Northern Ireland from the Democratic Unionist Party’s Paul Givan, which Catholics should consider supporting, would overtly allow genuine religious conscience to be weighed in the balance in discrimination claims of this sort. Unfortunately, however, the other parties in Northern Ireland have, to their discredit, opposed this root and branch.
Alternatively, there was an interesting proposal, floated in this magazine in 2015 by John Duddington, to have discrimination law require parties to make reasonable adjustments to take account of religious sensibilities. That proposal applied to employers. But there is no reason why the same thing should not be required of claimants, by providing for a defence to any discrimination claim insofar as the claimant failed to make reasonable adjustment for matters of conscience (for example, in the Ashers case by not insisting on an inscription after he knew of the bakery’s religious scruples).
There is little doubt that there is much public sympathy for Ashers Bakery. Quiet pressure added to prayer may be surprisingly effective.
Andrew Tettenborn is a professor of commercial law at Swansea University