The Supreme Court’s decision last week to find in favour of two Christian bakers in the “gay cake case” blindsided much of the media and secular establishment. In earlier rulings, the district judge and the Court of Appeal had found that the refusal of Ashers bakery in Belfast to supply a cake iced with a slogan calling for support for gay marriage to be a clear case of discrimination. There had been no notice of any change in the drift towards intolerance of any special pleading on religious grounds in both the wider society and the courts. Yet here was the Supreme Court, unanimous in their judgment and seemingly finding in favour of religious freedom.
In fact, the judges were doing no such thing. Both the particular circumstances of this case and certain features of Northern Irish exceptionalism suggest this case will not signal any great legal turning point or cultural change of heart.
The central issue here was not religious freedom; nor even, indeed, discrimination on grounds of sexual orientation. There may one day be a case where the competing rights of two “protected characteristics” under equalities legislation – religious belief and sexual orientation – are adjudicated in a way that allows us to discover which trumps which; but this was not it. The “gay cake case” was essentially a free speech matter.
What the Supreme Court noticed, which astonishingly previous courts had not, was that the owners of the bakery had refused to supply the cake to the complainant, Gareth Lee, neither because he was gay nor because he believed that same-sex marriage should be legal. They had made it very clear that they were happy to supply him a cake without any message on it supporting the principle of same-sex marriage. It was, they said, the message that they objected to, not the customer’s sexuality.
What’s more, they insisted, they would have turned down the same commission if it had come from a heterosexual customer – a party planner, for instance. The bakers had not, therefore, discriminated against a person; they had simply refused to give expression to a view with which they did not agree.
Oddly, Northern Ireland is the only part of the United Kingdom in which gay marriage is not permitted by law. Thus, under the earlier decisions, the bakers felt they were being required to assent to a proposition that even Northern Ireland’s assembly had refused to back on a number of occasions. They were being pushed into the vanguard of progressive campaigning, required to be more “woke” than the legislature.
The case was further complicated by the fact that Northern Ireland is also the only part of the United Kingdom where discrimination on the grounds of “political opinion” is forbidden. Northern Ireland’s politicians have long recognised that it is necessary to underpin the ban on discrimination on religious grounds between Catholic and Protestant. Without the “political opinion” backstop, religious bigots could simply claim instead to be discriminating between Nationalists and Unionists.
The political opinion clause was a handy second string in this case. If discrimination on the grounds of sexual orientation were ruled out, then surely the bakers’ refusal to ice a “support gay marriage” message constituted discrimination against someone holding a particular political view. Well, once again: no it didn’t. Ashers bakery did not refuse to serve supporters of the legalisation of same-sex marriage; it simply refused to ice certain words.
The law has long held that free speech is about more than being permitted to say certain things. The freedom not to be compelled to give expression to statements you do not believe in is an important part of free speech too.
Another surprising aspect of this case was the welcome that the Supreme Court decision received from Peter Tatchell and Stephen Fry. Both have been high-profile supporters of equal rights for gay people. Nevertheless, both supported the court’s judgment because they saw the dangers inherent in compelled speech. Had the case gone the other way, Tatchell argued, then gay bakers might have had to ice homophobic messages on cakes, Jewish publishers might have been forced to put out books denying the Holocaust and Muslim printers required to reproduce cartoons depicting Mohammed.
Put like that, you might think that the argument was decisively won and the case closed. But not so. The outcome has been condemned by activists as “a step backwards for combating discrimination” and the Northern Ireland Equalities Commission, which helped Gareth Lee bring the case, is considering an appeal to the European Court of Human Rights. A luta continua.
In many respects the causes of free speech and religious freedom are inextricably bound up. In a world increasingly dominated by identity politics, there are certain to be more and more attempts to control and censor religious expression. When moral teachings held in common by all the major faiths are susceptible to being defined as “hate speech” by over-enthusiastic police officers monitoring social media, the time is right to insist on some clarity.
After Brexit there is a chance to argue for a new settlement. A British bill of rights could afford a fresh dispensation where religious freedoms are expressly guaranteed alongside freedom of expression and a more nuanced approach to equality law. The gay cake controversy has already sparked some creative thinking in this area.
Some Northern Ireland politicians have floated the idea of affording objections grounded in religious conscience some special recognition. In discrimination cases, for instance, a genuinely held religious view might allow an exception to be made. Others have ventured the possibility of requiring reasonable adjustments to be made to accommodate religious beliefs in much the same way as the law currently requires such adjustments to be made for disabled people.
There will be some within the Catholic community who will oppose trying to embed more firmly religious freedoms in our laws and in our constitution. They will say that the only way to be counter-cultural is never to be on the winning side. If things got any fairer or more faith-friendly, they would start to feel a nostalgia for the little martyrdoms of lost legal actions. But debating what freedoms we believe are essential, to what extent we think religion should be indulged by those who have none, and defining the connections between what we should be free to think and say, is a proper role for Catholics in the public square.
If we want religious freedom we need to fight for it ourselves, not put our faith in judges – even the relatively sensible crew now sitting on the Supreme Court.
Dennis Sewell is a contributing editor of the Spectator
This article first appeared in the October 19 2018 issue of the Catholic Herald. To read the magazine in full, from anywhere in the world, go here