On the Ashers Bakery judgment

The Ashers Bakery judgment has been published and the bakers are found to have broken equality legislation. The full judgment is worth reading and can be found here. For a helpful, and relatively brief, summary of why this is an astonishing (if somewhat unsurprising) result see Archbishop Cranmer.

It bears saying that the principle of equal service is a good and valid one. Few would disagree that service ought not to be denied to somebody simply because of their sexual orientation or political beliefs. A bakery that bakes standardised cakes ought not to refuse service to an individual simply because they are homosexual, subscribe to a political party whom the service provider does not or support a campaign the service provider does not/cannot. The Asher case, however, was never about the provision of a standard service being denied to somebody because of their religious or political beliefs. Rather, this was a case of somebody being denied a particular service that would have been denied to anybody else requesting that same identical service.

Rather than offer a summary of the whole case (others have done a better job of that already), I rather want to direct your attention to a handful of rather concerning elements of the judgment itself.

Point 39 of the judgment states the defendants must have known the plaintiff was homosexual and/or associated with homosexual people because of his support for gay marriage, the claim he worked for a small volunteer organisation and the stated graphic on the cake including the word 'QueerSpace'. Certainly there are plenty of heterosexual people that support gay marriage and there is no particular reason for the defendants to have any knowledge of what 'QueerSpace' actually is or does. The presumption of the judge was that this service was denied because the plaintiff was homosexual. However, point 7 of the judgment states quite clearly that the plaintiff 'had previously purchased items at this branch of the 1st Defendant Company'. Were it the case the defendant was denied service because of his homosexuality - which, according to the judge, was 'abundantly clear' - it is virtually impossible to account for the previous provision of service.

Point 41 of the judgment quotes a number of cases that make concerning statements regarding the nature of discrimination. One judgment avers 'discrimination... is something subtle insidious or hidden' while another states motive and purpose have no basis in judgments on discrimination. point 42 then goes on to argue that the necessary comparator is not a heterosexual person purchasing the same cake but a person of undisclosed sexual orientation purchasing a pro-traditional marriage cake. The comparison is laughable. The very cause of discrimination was not the sexual orientation of the person purchasing the cake, which was not known to the defendants and the judgment offers no great evidence they were aware of such orientation, but the message contained on the cake. Equally, even were the judgment correct on this point, it beggars belief that the previous service to this same individual was then not considered as evidence his sexuality had nothing to do with the refusal of service. As the bakery stated throughout, there have been a number of other cakes that were deemed indecent or offensive that they also refused to bake.

Point 43 acknowledges that the bakery 'cancelled the order as they oppose same sex marriage'. It is something of a logical leap to then find, as in Point 46, 'the 2nd and 3rd Defendants have unlawfully discriminated against the Plaintiff on the ground of his sexual orientation'. The prior service of the plaintiff, the provision of cakes bearing no specific political slogans, speaks against this. Moreover, acknowledging that it is indeed the message to which they object in no way implies discrimination against the individual. It, not implicitly, but explicitly implies a refusal to assert political and/or religious slogans and opinions that the service provider themselves do not hold and cannot in good conscience state.

Points 53-60 seek to establish that the Plaintiff held a political opinion and was discriminated against on these grounds. On balance, I suspect the judge is correct in asserting this is a political opinion and is almost certainly correct that the defendants knew the Plaintiff's political opinion on gay marriage (as per their letter and the specific writing on the cake itself). However, it is patently not the case that the political opinion held by the Plaintiff was the basis of discrimination. The purpose of the legislation is to stop the refusal of a standard service to those who hold specific political opinions. However, it is not the purpose of the legislation to coerce service providers to create material and products that actively promote political beliefs and opinions contrary to those they campaigned against. Again, had the bakery refused to serve the Plaintiff a standard cake simply because he supported gay marriage, this would legitimately fall foul of the law. That they refused to bake a cake bearing a political slogan to which they themselves object and campaigned against ought to be outside the scope of this legislation.

Point 64 of the judgment is, frankly, ludicrous. It states 'if the Plaintiff had ordered a cake with the words "support marriage" or "support heterosexual marriage" I have no doubt such a cake would have been provided. It is the word gay to which the 2nd and 3rd Defendants took exception'. That is patently not true. It is the campaign in favour of gay marriage to which they took exception. Now, whatever one's views on gay marriage, it is surely inappropriate to force anybody to produce materials and products which actively promote a position and/or campaign to which they themselves specifically disagree. For example, would it be right for a homosexual baker to produce a cake saying "no to gay marriage" despite campaigning in favour for it? It strikes me that would be just as unfair as the case we are discussing.

The absurdities of this judgment are not hard to discern. For one, the defendants have been found guilty of refusing to bake a cake which supports a position that is currently unlawful. In other words, they have been found guilty of standing up for the existing law of their province. 

It has also been deemed illegal to not provide services and products which directly contravene the views and opinions of the service provider. Now, service providers are compelled to produce products and provide services in favour of campaigns to which they themselves specifically campaigned against.

Further, Asher's Bakery were found to have discriminated against a legitimate political opinion. Though gay marriage is currently not legal in the province, it is certainly not illegal to hold the view that gay marriage ought to be legalised. Such a judgment, however, means a BNP member who requests a cake from a Jewish baker bearing the slogan "Hitler: the best leader we never had" would be compelled to produce such a product on the grounds that to do otherwise would be to discriminate against a political opinion that is not illegal to hold.

The bakers' religious views were found to be moot in this case. As such, religious believers will be compelled to offer products and services to those who request blasphemous, religiously offensive or religiously unconscionable products. If an EDL supporter (holding a political view) asked a muslim baker to produce a cake with a picture of Mohammad and the caption "false prophet" underneath (a religious view), would they be compelled to make such a cake on the grounds to do so is to discriminate against political opinion?

There is no doubt that most agree political opinion, sexual orientation and religious beliefs should not be a basis for withholding products and services. Such a position was always intended to stop those who supported one political party, were of one particular sexual orientation or religious belief from refusing to provide services to a person of any other. What they were never intended to do was compel people with deeply held beliefs and convictions to provide services and products specifically advocating and promoting views contrary to their own that would involve the suppression of conscience. It does not take a genius to see a distinction between refusal to serve a gay man because he is gay (evidently wrong) and refusal to provide a product bearing a slogan supporting a position which you have spent some time campaigning against. As far as I can tell, Ashers Bakery were seeking that distinction. Their service of the Plaintiff and their refusal to bake a particular product (rather than serve the man at all) speak to this. One can only hope an appeal judge recognises this too.

"Christian" assemblies and cake

This week has seen a furore over a couple of, dare I say, non-issues.

In the first, the Bishop of Oxford, the Rt Rev'd John Prtichard - Church of England head of education - has opined on whether assemblies "of a broadly Christian nature" should continue in schools. He has concluded they should not. Unsurprisingly, the British Humanist Association (BHA), whose sole raison d'etre is to see the removal of all expressions of faith from public life, applaud the comments. The Daily Telegraph, amongst others, were less than impressed.

Let's not pretend that the Bishop of Oxford and the BHA are singing off the same hymn sheet. The BHA want to see any hint of faith removed from schools and other public arenas altogether. The Bishop of Oxford is less keen on that and more interested in "liberating" schools and offering a time for "spirituality" of differing forms.

Now, I can't say I agree with the reasoning of either the Bishop of Oxford or the BHA. However, I do agree that assemblies "of a broadly Christian nature" should no longer be enforced in schools. I take this view for three main reasons:

Firstly, removing the compulsion for "Christian" assemblies does not mean that we can no longer have assemblies "of a broadly Christian nature". All this would do is remove the compulsion for it to be "broadly Christian". Second, the makeup of schools in the UK is not "broadly Christian". In some areas, schools are majority muslim and in other areas there is a clear mix of beliefs. Even in majority white British schools, to say most are from "broadly Christian" backgrounds is probably false. Finally, and most significantly, assemblies "of a broadly Christian nature" - certainly stretching back as far as when I was at school (and I suspect further) - means, in practice, asinine rubbish that barely accords with any conceived notion of Christianity. I would far rather we had assemblies that didn't even purport to be Christian - whether they also amount to asinine nonsense or otherwise - than we keep up a pretence of "Christian" assemblies that are no such thing.

In the second cause of consternation, a Northern Irish bakery is being taken to court over their refusal to bake a cake containing a slogan in favour of gay marriage, which is still unlawful in the province. The cake was also asked to contain a logo for the campaign group QueerSpace and photograph of Sesame Street characters Bert & Ernie hugging. The Equality Commission for Northern Ireland are seeking to argue the bakery has discriminated against Gareth Lee, the volunteer LGBT activist who ordered the cake, on grounds that refusal breaches equality legislation outlawing discrimination in the provision of goods and services. Asher Bakery argue they are not discriminating against homosexual people - whom they are happy to serve - they were simply unwilling to bake a cake containing the requested content.

On this particular issue, I rather have sympathy for the bakery. Should they have simply refused to bake a cake for a homosexual person, or refused to bake a cake because it would be used at a gay marriage ceremony, I should think Mr Lee would have a legitimate case. This would be open and shut discrimination. Indeed, in my personal opinion, it would be equally unnecessary for the Christian conscience to refuse such a request as they would have no part in the actions of the individual nor any part in the day. That they inevitably serve cakes to others - whose lifestyles and parties they no doubt do not endorse - would rather support the claim.

However, the bakery have not refused to serve Mr Lee. They have not refused to bake a cake for any particular gathering. What they have done is refuse to bake content that they find goes against their conscience. It is also worth noting this is not the first cake they have refused. The bakery have turned down cakes containing pornographic images, profanity and other offensive material. The issue is not the person ordering, nor the occasion for which it is ordered, but the content of the cake itself. 

Though this is obviously an emotive and current issue, let us make the same case for a white supremacist asking for a cake containing racially offensive material. Now, most of us would have no problem defending the bakery for refusing such business. Nobody would be screaming political discrimination here and, were they to, most would ignore it and side with the bakers. Yet, on the actual issue at hand - again a matter of content rather than buyer - we have a discrimination case being brought. Aside from their mainstream palatability, what is the difference between the two cases?

If this discrimination case goes ahead, and is won, a series of questions will follow. Most significant of these would be are there any grounds to ever refuse business now? Would the bakery be forced to produce any content, no matter what it contained, or face legal action? If so, would this extend to any and every service provider? Would Christians be forced to produce content for people specifically seeking to belittle their own faith?

I broadly think anti-discrimination legislation is good. I am certainly not arguing that Christians should never serve people with whom they disagree. It is quite right that people should be served equally as people. Nevertheless, in this particular case, I find myself siding with the bakery. They aren't refusing to serve people equally, they are simply refusing particular content regardless of whomever it is that was asking for it, LGBT or otherwise.

The loathsome introduction of judicially enforced eugenics

Here is a most troubling story. Lord Justice Munby - Head of the Family Division of the High Court of Justice in England and Wales - has ordered a 13 year old girl to have an abortion despite her clear desire to the contrary. The Cranmer blog comments here.

The basic facts of the case are these: The girl in question has an IQ of 54 and the comprehension skills of a seven year old. She has been deemed "very damaged", "impaired" and "largely out of control". The father of the child was a 14 year old boy, evidently reckless and irresponsible himself. Nonetheless, it was manifestly clear the girl "had set her mind against termination" and expressed "unambiguous hostility towards termination".

One expert argued "If the pregnancy were terminated I believe that this would cause considerable harm to this young girl, who would see it as an assault. Continuing the pregnancy...may have a less detrimental effect on her given her current circumstances". Nevertheless, Lord Justice Munby argued "a clinical psychologist showed the girl lacked capacity to decide for herself" and ruled "it was clearly appropriate for me to supply the necessary consent to enable the termination to proceed". All of this is over and against the desire of the girl herself and the recommendation of clinical experts.

Cranmer has previously commented on Lord Justice Munby and his underlying legal presumptions (accessible here). Whatever view one holds is rather by the by in this case. It matters not whether one believes, like Cranmer, Christian mores and values should underpin our legal system. Nor should it make a difference if one prefers Lord Justice Munby's position that "the law of this country is secular, and that Christianity no longer informs its morality or values". What really matters - and I see no reason to reach a different conclusion based on a Christian or secular worldview - is whether enforced eugenics (and let's make no mistake, that is precisely what we are talking about) is ever acceptable.

The decision made by Lord Justice Munby was clearly not made on the basis of the girl being a minor. A month earlier, Mr Justice Mostyn had ruled that another pregnant 13 year old girl "had the mental capacity to understand options open to her" and that she was free to "decide what she wishes to do". This makes it evident the decision was based on IQ alone. Moreover, despite expert testimony that continuing the pregnancy would have been preferable for the mother, Lord Justice Munby ruled for a termination. This rather suggests the best interests of the mother were not at heart (for the best interests of the mother were expressly stated as continuation of the pregnancy). 

What then are we to make of the decision to terminate? Seemingly, it was based on little more than the mother's low IQ and comprehension. Given the best interests of the mother were to continue with the pregnancy, it follows the mother's best interests cannot have been forefront in the decision-making process. We are thus forced to conclude that although the low IQ of the mother was the basis for the decision being taken out of her hands, it was also the fundamental basis of the decision to terminate the pregnancy.

Though Christian and secular values may differ over the rights and wrongs of removing the decision-making process from the mother (though not necessarily), surely both would agree that the "best interests" of the mother must be taken into account when reaching a decision. Though, when discussing abortion in the abstract, Christian and secular worldviews may differ over what constitutes "best interests", in this case the best interests were made manifestly clear by expert witnesses. They concluded the best interests of the mother were to continue with pregnancy. 

This begs the question: why did Lord Justice Munby rule to terminate the pregnancy over and against the wishes, and the best interests (in the view of experts), of the mother? One can only conclude that Lord Justice Munby was concerned the child would inherit the mother's low IQ and level of comprehension. The mother's wishes and best interests were apparently moot.

Cranmer gives undue credit by inferring that Lord Justice Munby believed he was acting in the girl's best interests, despite his palpable wrongness predicated on his secularist presumptions. Rather, it seems Lord Justice Munby, despite expert testimony clearly stating the girl's best interests, reached a conclusion contrary to this measure. It is hard to escape any other conclusion but that this represents judicially enforced eugenics. Whatever differences exist between Christians and secularists (and those with a foot in both camps), one finds it hard to believe that many would find this acceptable.

Gay Marriage (again)

It was reported in Tuesday's Telegraph that UKIP would "strip Christian weddings of their legal status". Similarly, ten days earlier, Simon Hughes - Liberal Democrat justice minister - said Christian wedding ceremonies "should have no legal status". In both cases, an argument was advanced for the separation of Church and State. Under such rules, all religious groups (not just Christians) would be expected to undertake two ceremonies: a state-recognised marriage followed by a religious ceremony if the couple wish. Hughes argued "you would have a ceremony by which the state recognises the marriage, the wedding, and then the faith community has the ceremony which gives that the authority”. The Archbishop Cranmer blog has commented on the UKIP story here whilst The Christian Institute report on Simon Hughes' comments here.

This blog has made no secret of its position on either Church/State separation (see here, here & here) or gay marriage (see here & here). Rather unusually, one finds oneself in agreement with both UKIP and the Liberal Democrats simultaneously.

For Cranmer, the issue revolves around the disestablishment of the Church of England coupled to his rampant Euro-scepticism. The position espoused by Farage and Hughes would necessitate the disestablishment of the state church which, to His Grace, would be anathema. For the Christian Institute, much of the issue revolves around parity for homosexual marriage. Having previously denounced civil partnerships as "gay marriage in all but name" (see here & here), it is difficult for them to maintain "although the media and some homosexuals like to call civil partnerships ‘gay marriages’, they are not marriages in law or in reality" as they have since tried (see here). Their argument revolves around the existence of civil partnerships which, they claim, make gay marriage null and void. In truth, the objection is less about legal parity as cultural equality, an issue on which the boat sailed some while ago.

For the Christian, it is always difficult to work one's faith out in the public square. What are the issues on which we ought to legislate? Should we seek to implement scriptural commands in civil law? If so, which? How far do we allow for cultural mores that seem antithetical to scripture? Before we can answer the questions surrounding gay marriage, we must first address these basic first principles (my attempt to answer some of these can be read here). 

The non-conformist, dissenting tradition to which I belong has a long history of seeking freedom as a disenfranchised group. How sad it is that many now view evangelicals, most of whom belong to this camp, as limiting to themselves the freedoms for which they fought bitter battles. It is equally unfortunate that those who holds such views often fail to recognise it is precisely those battles won long ago that allow minority groups the freedom to campaign for their own interests over and against the opinion of many evangelicals.

On the issue of gay marriage, the proposals outlined by Farage and Hughes provide an opportunity for Christians to support another minority group's right to freedom (as we ourselves would expect from others) whilst maintaining a clear, scriptural view of the issue at hand. The State may grant legal, contractual living agreements to whomever it will whilst, with the separation of Church and State, the Church may provide ceremonies for whomever it will too. This solution removes discrimination at state level, the absurdity of certain churches forbidden to carry out ceremonies against their wishes whilst affording no protection to those who cannot countenance carrying them out, and grants legal parity to all whilst making provision for each to carry out their marriage (both institution and individual) in the manner befitting their belief and culture.

Whither freedom of expression in public life?

In a story published by the Guardian, Lady Warsi has attacked what she describes as 'militant secularisation' which 'demonstrates similar traits to totalitarian regimes – denying people the right to a religious identity because they were frightened of the concept of multiple identities'. She has also called for Christianity to be given a central role in public life arguing that 'intolerant secularisation has to be held back by reaffirming the religious foundations on which our societies are built'.


This is indeed a thoroughly bizarre situation. A Muslim calling for greater Christian influence in public life, a right-winger championing freedom of religion and religious expression - historically a major driver on the left (see 'Right-Wing Evangelicalism has forgotten it's heritage), and this writer in broad agreement with a Tory! Of course, all this has been prompted by a delegation taking a jolly to the Vatican. In light of Pope Benedict XVI's comments regarding the onward march of secularism and more recent press stories concerning the perceived purge of religious expression from public life, Lady Warsi's statement is perhaps not so surprising. Nevertheless, for those on either side of the non/believing debate, her comments are no doubt pertinent.


I am only in broad agreement with Lady Warsi. I concur that a militant secularisation undoubtedly exists which hopes to expunge any form of religious expression from the public sphere. Organisations such as the National Secular Society and the British Humanist Association make no bones about such desires. It is patently absurd, as these groups claim, that secularisation is unbiased - it is the non-believers theocracy. It allows Atheists to bring their religious convictions to boot on matters of public life - the positive affirmation that there is no God is a religious conviction - whilst refusing convinced believers the same courtesy. Indeed, whilst believers hold many views about society and law which are informed by their religious convictions, so too the affirmation that there is no God will have an outworking in one's view of public policy. To pretend otherwise is quite frankly disingenuous. So, I fully accept Lady Warsi's premise and agree that free expression of religion, from whatever background or culture they emerge, should be allowed to continue in public life.


Nevertheless, I am not fully on board with Lady Warsi's comments. She argues that we must counteract this secularism by reaffirming the religious values inherent in Britain's history and culture. However, I simply do not agree for exactly the same reason as my disinclination toward complete secularisation. I find the installation of a Christian theocracy little more palatable  (though, as a Christian, I would no doubt find it a little more palatable) than the alternative non-believers charter. Whilst we may once have been a "Christian Country", a claim which I believe caused much damage (1), we almost certainly cannot be considered such today. No doubt many would argue that we must use some basis for enacting laws and Christian values are as good as any. This is an assessment with which I disagree (for my thoughts on this see 'Should Christians try to bring biblical law into civil society').


I would contend, like Lady Warsi, that individuals should be free to express their religion in the public sphere. I would also agree that complete secularisation is not a means by which all people are considered equal. This view circumvents the reality that religious conviction - whether belief or non-belief - impacts one's view of public policy. Secularisation allows non-believers to bring such convictions to boot in the public sphere whilst, at the same time, insisting believers cannot. Therefore, this is no more preferable than any other religious theocracy. Unlike Lady Warsi, I do not particularly believe Christian values must be imposed on civil society. Indeed, I would contend that our law should be enacted on the basis of that which leads to equality and that which upholds the rights common to man, whatever they may be.


Notes

1. The cultural Christianity of the past led many to the false belief that they were Christians as a direct result of their cultural upbringing. Whilst they may have been culturally Christian, this in no way transpired into any sort of saving faith as described in the Bible. Nevertheless, this is the sort of faith many believed they possessed simply because of their cultural background and potentially because of church attendance.