The news that the Governor of the state of Georgia, Nathan Deal, has vetoed a bill strengthening religious liberty protections is the latest salvo in a series of battles taking place over such pieces of legislation across the Unites States. The bill contained a number of provisions intended to, effectively, insulate churches and religious groups from the legal repercussions of the national legalisation of same-sex marriage in America.
Some of the provisions were so reasonable and obvious that one hopes they would have proven redundant, even had the bill passed; this is especially true of, for example, the protection of religious ministers from being compelled to perform same-sex weddings. Others, like the right of churches, and expressly religious organisations, to apply a “faith test” in their hiring policies, are already protected in federal law.
But some of the provisions were more controversial, most especially the right of churches and religiously affiliated organisations to refuse service to someone, in this case a gay couple, on the grounds of their religious beliefs. This is an immensely thorny legal question, one which has raised its head on both sides of the Atlantic, and the stakes are actually far higher than is commonly acknowledged.
Thus far, the right of small businesses with deeply religious owners to refuse service has focused on wedding cakes and B&B reservations. The main argument against them is that, gay marriage being legal, they should not be allowed to deny services to a perfectly law-abiding section of society. There is a certain rationale to the argument when considered on the small scale; no one wants to see “No Gays” signs hanging in the high street bakery.
Similarly, many, reasonably sense that a fight is being deliberately picked with Christians who just want the right to quietly dissent from the new social consensus – I have looked in vain for any examples of law suits being brought against the owners of small businesses of any other faith.
But, viewed without context or an eye on the likely precedents being set, most people could be excused for rolling their eyes and observing that it’s only a bloody cake, after all. In fact, what’s at issue is a far more crucial question, and it goes to the heart of freedom vs legality in a secular democracy: does “you can” mean “you must”?
Ok, not many people are really very exercised about two spun-sugar grooms on a cake. But what if, instead of bakers, we are talking about doctors? In this country, and in America, a woman can legally abort her child. Does this create an obligation for a gynaecologist to perform abortions? Should they be compelled, and sued and disqualified if they refuse? What about euthanasia, could doctors be obliged to end their patient’s lives just because the law might change to say they can?
These examples make for a much more stark illumination of the principles at stake for those who religiously object to something, even though it is legal. Unfortunately, in the struggle to preserve the freedoms of conscience and religion, we do not get to pick our battles. I doubt many people really wish to see protracted legal battles trying to ring-fence off whole sections of society from gay marriage: apart from it making a terribly ineffective legal boogey-man, it perpetuates the misrepresentation of the Church as obsessively concerned with homosexuality.
But if no one defends the Christian bakers, the precedent will be set, and there will be no line of defence left open to the Christian doctor.
It is an often repeated, but little heeded, observation that there is little real tolerance or plurality in our tolerant, pluralistic society. Increasingly, the right to refuse because of one’s conscience is becoming no right at all.
At the beginning of the twentieth century, perhaps to most unpopular class of men were the conscientious objectors who refused to fight in the wars. Today, those men who went to prison rather than fight are regarded as national martyrs for freedom of conscience, and this is now recognised without denying the right and necessity of the fight against fascism. It is a great shame we cannot apply such principle and magnanimity to our current time.