Ashers Bakery, Gay Cakes and Freedom of Conscience

This piece is not an argument about gay marriage or the moral reasoning that undergirds the debate. This is a reflection on the grounding of the recent ruling against Ashers Bakery, especially its use of an improper comparator, which singularly tipped the judgment in favor of the plaintiff.

The Court of Appeal in Belfast ruled on the 24th October 2016 that Ashers Bakery, run by local Christians– Karen and Daniel McArthur, acted unlawfully when they refused to write, “Support Gay Marriage” on the cake that Gareth Lee, a Gay activist, ordered. The McArthurs were slapped with a fine of £500, which they are required to pay Lee unless the UK’s Supreme Court decides otherwise.

Peter Kreeft, the Christian philosopher, articulated the classical understanding of tolerance with the phrase: be egalitarian towards persons and elitist towards ideas. True tolerance is not acceptance of any/every idea. After all, not every idea is true or valid and therefore, not every idea is equal. There are clearly some stupid ideas out there!

But tolerance necessarily would have to presuppose that all persons are equal. The Christian concept of Imago Dei is robustly egalitarian. That everyone is made in the image of God accords a non-negotiable value upon each individual irrespective of his or her background, gender, status, race, etc. Accepting of an individual would mean that the rights that are basic and fundamental are extended to each person without discrimination.

The Bakers did not refuse to bake a cake for the Gay activist. And rightly, businesses established to serve the common civil society should not refuse services to people merely because they disagree with their lifestyle. The bakers claimed that they “would have supplied a cake without the message ‘support gay marriage’ and would also have refused an order from a heterosexual customer whose order included the same message as that sought by the respondent.” In short, they claimed that they were not discriminating against who was placing the order, but only with the message that conflicted with their religious belief.

Why would they refuse to write those words while not objecting to bake a cake? Cannot the words “support gay marriage” be construed as just a part of the decoration? Would it be different if it wasn’t a slogan and the words merely read, “Happy Anniversary: Adam and Steve”? When the cake finally made its way to its intended audience, would the bakers be construed as authors of those words? These questions could raise varied responses.

However, in this case, the bakers felt that they were forced to participate in a slogan which made them “responsible for the message”, which contradicted with their religious belief. The ruling, they felt, was a way of “coercing them into promoting other people’s views.”

Common as it is when called upon to pronounce judgments in such cases, the judge invoked a comparator.  The judge argued, “if a comparator is required, the correct comparator is a heterosexual person placing an order for a cake with the graphics either “Support Marriage” or Support Heterosexual Marriage.” The judgment argued that the bakers “would not have objected to a cake carrying the message ‘support marriage’ or ‘support heterosexual marriage.’” The ruling further argued,

We accept that it was the use of the word ‘gay’ in the context of the message which prevented the order from being fulfilled. The reason the order was canceled was that the appellants would not provide a cake with a message supporting a right to marry for those of a particular sexual orientation. This was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community. Accordingly, this was direct discrimination.

In my view, it is the erroneous comparator that the judge employed that tipped the judgment in favor of the plaintiff.

Proper Comparator and Meanings

Key to answering the question whether the slogan “support marriage/heterosexual marriage” functions as a proper comparator to “support gay marriage” lies in surfacing the distinct meanings of the comparators in each case as understood by the parties involved. Merely juxtaposing two similar-looking statements does not ensure that they are the proper comparators. When drawn into participating in an idea, the slogans, “support heterosexual marriage” and “support gay marriage” don’t function quite the same way as the judge assumed.

The suggestion of the comparator in the judgment indicates that the judge failed to see that in one instance the message carries a contradictory view and in the other instance it carries a subalternate view. That is, in one instance, the message “support (heterosexual) marriage” can simultaneously (or subalternatively) be true along with the plaintiff’s belief, say, “I believe in gay marriage.” In contrast, the other message, “support gay marriage” cannot simultaneously be true along with the defendant’s religious beliefs and contradicts his belief that marriage is exclusively a heterosexual union. The bakers were asked to endorse a contradictory view and not a subalternate view. 

Tolerance, by definition, is reserved for that which one disagrees with. If one supports gay marriage, then it would be incorrect to argue that she is tolerant toward gay marriage. But tolerance should be equally directed towards those who believe differently on gay marriage. This case really surfaces the intolerance of the plaintiff and of the Equality Commission toward the defendants and their beliefs. [See Neil Midgley’s As a gay man, I’m horrified that Christian bakers are being forced to surrender their beliefs and Peter Tatchell’s It sets a dangerous and authoritarian precedent]

For instance, for someone who eats all meat, the particular message “eat beef” does not contradict his beliefs and thus does not cause the same offense as the message “eat pork” does for an orthodox Muslim. Therefore, the slogan, “eat beef” (when it is subsumed within acceptable alternatives– be it an instance of someone who eats all meat or someone who doesn’t eat all meat, as in specifically, say, an orthodox Muslim), is not a proper comparator to the slogan, “eat pork”, which is contradictory to his belief. If freedom of conscience is honored, then a Muslim or Jewish baker should legitimately be exempted from writing an endorsement that reads, “Eat pork” or “bacon is kosher”.

The undergirding assumption is that people should be free to hold their views and the state should not coerce them into leveling those views. This is precisely the kind of reasoning that would allow a similar right to a gay baker who’d want to be exempted from writing “support only heterosexual marriage” on the cake he bakes.

In short, a proper comparator is identified on the basis of how the meanings of the comparators are understood. While the law should rightly support those that are at each end of the polarity of beliefs, it is unfair for the Court of Appeal to require each party to also hold as true that which they in their good conscience cannot. That is, while the law can hold contrary and contradictory views as equal before the law; it is unfair to require someone to affirm a belief that is contradictory to his religious views.

Conversely, the ruling becomes an instance of discrimination of persons (the bakers) merely because of their ideology/beliefs. When the law of a land begins to discriminate against persons for their beliefs, we’re thrown back to a medieval societal calculus and becomes oppressive to one group or the other. That the bakers were happy to bake a cake for the gay activist clearly suggests that they were not discriminating of persons. One ought to have the right to refuse to subscribe to an idea. Unfortunately, the ruling takes a coercive turn in not leaving room to ideologically disagree with gay marriages.

In short, this ruling failed to differentiate between propagating an idea and equality of people. One must be egalitarian towards people and be elitist towards ideas. Some ideas are better than others. As to what ideas are better can be deliberated till all the cows come home!


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