The Ashers #gaycake case – and why the argument (sadly) doesn’t work

You are probably familiar with the Ashers’ Bakery #gaycake case. The Ashers refused to decorate a cake for a customer with a pro-gay marriage message. They were found to be discriminating against him. It is important to remember again that the issue was not a refusal to bake a cake or even to decorate a wedding cake but rather to decorate it with a message they fundamentally disagreed with. The Ashers were in effect being compelled to join in with a political campaign that they disagreed with.

The case has now been taken to the Supreme Court. The couple’s argument is that they were not discriminating against a person and would happily bake cakes for the customer in the future, as they did in the past. Free speech sits at the core of the case. Their point is that freedom of speech must include not only the right to say things even if they are unpopular and potentially offensive but also the right not to be compelled to say things you disagree with.

I agree with the central premise of the case.  However, I think there are some problems with the arguments being used.  There are two points to consider here. First of all, the argument is that if the original decision is upheld, then it will have serious implications for other situations:

Here is Peter Tatchell writing in the Guardian (Tatchell is a long time campaigner for LGBT rights but has come out in support of the Ashers).

“…This raises the question: should Muslim printers be obliged to publish cartoons of Mohammed? Or Jewish ones publish the words of a Holocaust denier? Or gay bakers accept orders for cakes with homophobic slurs? If the Ashers verdict stands it could, for example, encourage far-right extremists to demand that bakeries and other service providers facilitate the promotion of anti-migrant and anti-Muslim opinions. It would leave businesses unable to refuse to decorate cakes or print posters with bigoted messages.”

Now, when arguing a case, it’s important to be able to inhabit the argument of your opponents. So, let’s stop and think for a minute.  Tatchell is right in principle but think how this is going to be challenged.

First of all, specifically on the technicality of law and the original decision.  The “This” that Tatchell refers to is the Judge’s verdict.  Tatchell explains:

“The judge concluded that service providers are required to facilitate any “lawful” message, even if they have a conscientious objection.”

Now, let’s pick up on the examples above.  In each of those situations, the argument would be that the message was not lawful. The business owner would be arguing that they were being asked to produce a message intended to incite hatred and potentially violence. In fact, in the specific examples, they would have a good case for arguing that the request to them was itself a hate crime motivated by racism, Islamophobia, anti-Semitism or homophobia.[1]

We may not agree with that, we may believe that free speech is at stake here but unfortunately, I’m not convinced that our society does believe in free speech. It believes in certain messages and values. I fear that the fight here is one that was lost a long time ago.  In reality, if the Ashers had produced a cake declaring that gay marriage is a sin, they may well have found themselves in court for that too. And whilst, when they got to court, the magistrate or judge may have found in their favour, they would still in effect have had their freedom curtailed. If those who disagree with you are able to disrupt you by having you arrested whilst you preach in the street or force you to hire lawyers to argue your case then they have already restricted free speech.

Secondly, whilst the Ashers were not refusing to bake a wedding cake for a same-sex marriage, what if they were? What about the Bed and Breakfast owner who refuses to let a room? Are we conceding the argument on those points? What was at stake in the Bed and Breakfast cases? I would suggest three things:

–          Are sexual relations a moral choice or inherent to our personal identity? If the latter, then refusing a double room to a gay couple is equivalent to putting up a sign saying “no blacks.” If the latter, then providing you are willing to offer them single rooms or twin rooms then there is no discrimination, you are willing to welcome.  Indeed arguably, the comparable case would be whether or not a customer could be removed for downloading pornography.

–          Are religious views purely private and personal or do we have the freedom to speak, even and especially when our views go against the prevailing culture?

–          Does freedom of speech extend to actions and behaviours?

I would suggest that these points mean we are a long way back in the battle. It may be that the Ashers will win their case this week but if they do, then it is likely only to be a temporary reprieve, a successful skirmish in the middle of a battle that is being lost.

Now that all sounds a bit bleak so I want to round off with two thoughts on the way forward. The first one is that the battle needs to be won elsewhere. It’s not just about court cases but about forming and shaping public opinion, it’s about changing the culture. This means that Christian preachers and bloggers need to work harder at arguing for what is right. It means Christians in public office need to stand firm and speak up for what they believe in. It means that there is a place for Christians in journalism and academia. It also means that the argument must go deeper. To be sure, there’s a free-speech issue here and we will have co-belligerents along side us. However, our concern is not just for free speech but to uphold God’s ways.

Secondly, the battle is probably lost but if a court case today is a skirmish within a battle, then this a battle within a war.  That war has already been won. It was won by Jesus on the Cross.  I support those who seek to speak out in public. This isn’t just about defending Christian’s rights. It’s about common grace and what is good for society. However, the Gospel is not dependent on our country upholding Christian values in its laws. The Gospel is not dependent on me and you having legal free speech. The Gospel will continue to go out even if we do face opposition and even persecution.

 

[1] If it was a non-Jew/Muslim that was asked to produce the message, that might alter things a little.

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