This old chestnut has been rumbling on, first through two lower courts, and now finally ending at the Supreme Court in the UK. It’s an important verdict with some interesting ramifications, and I want to explain why I support the verdict, though with some caveats.
This may or may not rile some fellow liberals, but I like to think I am rational and reasonable no matter how intuitively distasteful the conclusion may be. So, what’s the background?
The Christian owners of a Northern Ireland bakery have won their appeal in the so-called “gay cake” discrimination case.
The UK’s highest court ruled that Ashers bakery’s refusal to make a cake with a slogan supporting same-sex marriage was not discriminatory.
The five justices on the Supreme Court were unanimous in their judgement.
The high-profile dispute began in 2014 when the bakery refused to make a cake with the slogan “Support Gay Marriage”.
The customer, gay rights activist Gareth Lee, sued the company for discrimination on the grounds of sexual orientation and political beliefs.
But the bakery has always insisted its objection was to the message on the cake, not the customer.
Customer Gareth Lee requested a cake featuring the Sesame Street characters Bert and Ernie, iced with the message: “Support Gay Marriage.”
His order was initially accepted at a branch of Ashers in Belfast city centre, but two days later the baking firm’s head office contacted Mr Lee to say the firm would not make the cake.
Taking the actions of the Christian bakers at face value, then they do appear to be reacting against what the customer wanted on the cake as opposed to the sexuality or politics of the person themselves (though these may be inextricably linked).
The way I always look at these things is by analogy and seeing how I react to such. If I was a baker, and someone brought me a request for a cake that required me to ice a picture of a black person and the words “All black people should die horribly”, or similar picturing with “All atheists should be murdered” or, or brought me a request to ice a famous paedophile and some equally offensive words on it, or what have you, I would think it well within my rights to refuse to make the cake.
In other words, the principle to refuse to make something on account of it being morally offensive to me seems uncontroversial.
Now, there is an irony, or a hypocrisy, in terms of freedom of speech. This case is seen as a triumph for freedom of speech and yet the customer’s freedom of speech is being curtailed – possibly. Of course, he can make the cake himself without the remotest of problems, though perhaps not to the same artistic standard.
Peter Tatchell, Human Rights Campaigner heavily involved in issues concerning the LGTB community, said today of the ruling:
“Although I profoundly disagree with Ashers’ opposition to marriage equality, in a free society neither they nor anyone else should be forced to facilitate a political idea that they oppose.
“If the original judgement against Ashers had been upheld, it would have meant that a Muslim printer could be obliged to publish cartoons of Mohammed and a Jewish printer could be forced to publish a book that propagates Holocaust denial.”
As well as saying:
Human right’s campaigner, Peter Tatchell, who is known for his work supporting the LGBTQI community, said the ruling was a “victory for freedom of expression”.
“As well as meaning that Asher’s cannot be legally forced to aid the promotion of same-sex marriage, it also means that gay bakers cannot be compelled by law to decorate cakes with anti-gay marriage slogans,” Mr Tatchell, Director of the Peter Tatchell Foundation, said.
He continued: “Although I profoundly disagree with Asher’s opposition to marriage equality, in a free society neither they nor anyone else should be forced to facilitate a political idea that they oppose.
“The ruling does not permit anyone to discriminate against LGBT people. Such discrimination rightly remains unlawful,” he said.
I agree. I think this cuts both ways (pun intended). I find their position offensive to me – I disagree wholeheartedly with their opinions on homosexuality. But I think they should have their right to express that.
Ack, freedom of speech. It’s that nebulous idea that causes so many problems because one person’s right to free speech is another’s hate speech.
The issue boils down, in this case, to justification of what becomes offensive. I don’t think the bakery would win an argument about homosexuality with me in a long and philosophical debate. This comes down, as always, to axioms, to what one loads into the function machine that is one’s worldview from which one derives their conclusions about the world.
But even if one finds something offensive that would be almost impossible to justify “objectively” – I can’t ice this cake because balloons/numbers/the word happy is offensive to me – they are surely within their rights to maintain being offended as real. They can refuse to make the cake, because that is an endorsement of a position that is offensive to them.
There is a distinction (or is there?) between serving someone and then making something that is communicating offence. Perhaps I need to read up more on this distinction and how it pertains to consumption and production.
I am not refusing to serve someone on account of their skin or hair colour or their sexuality, but I am refusing to make something that philosophically supports that. Bit if that is them, then we might have a problem.
Perhaps there is an issue with this distinction because of the close connection between these two things. In selling them a cake, I am arguably endorsing them as who they are; in selling a cake with a particular slogan, I am in some way endorsing that slogan. If that person and that slogan are pretty synonymous (in this case, homosexuality being acceptable, either in the person or in the statement), then I can see where the issue and confusion may arise. Are there double standards at play?
There is definitely a grey area here.
But curtailing freedom of speech is a slippery slope. Freedom of speech always brings up these sorts of arguments because it gets back to arbitrary lines and the Sorites Paradox. Again! Where do we draw the line of what is hate, and what is acceptable, and who gets to arbitrate? If offence is inherently subjective and dependent on the individual, how do we arbitrate this at a societal level?
Is refusing to make a cake freedom of speech? I suppose one has a right not to say something and this would surely be the same with writing it. You shouldn’t be able to force me to say or write something that I truly find offensive.
The bakers would, it appears, have sold the man any other of their products, but to go out of their way to endorse a position was too much for them. As mentioned, I would not want to endorse certain positions, and claim a right not to do so.
As it stands, I think I defend the bakers in their actions, in principle if not in their moral position (i.e. being against homosexuality from a Christian worldview).
But I might change my mind if you convince me it’s reaosnable to do so.