The Supreme Court's ruling is a relief, but their reasoning leaves cause for concern
Something over four years ago Gareth Lee, a gay man, asked Ashers Bakery in Belfast to bake him a cake bearing a “Queer Space” logo and the words “Support Gay Marriage”, to be taken to a private meeting of a group with that object. The devoutly religious owners of the shop refused on grounds of conscience to do this. The result was a discrimination suit, which disturbingly succeeded both before the judge and in the Northern Ireland Court of Appeal. However the Supreme Court, in a relatively short judgment, upheld the owners.
As often with high-profile law cases, the technical grounds of decision are not of enormous importance. (For those interested, they were that Gareth Lee had not been discriminated against since Ashers would have declined to bake this cake for anyone, and in addition that requiring them to make a statement they disagreed with infringed their freedom to manifest their religion under Art.9 of the European Convention on Human Rights).
Nevertheless, there is enough here to give believers material for at least two-and-a-half cheers. For the first time, the UK courts have unequivocally endorsed believers’ freedom not to have to make a statement clearly contrary to their conscience. This is an enormous gain: it removes the spectre of a Catholic printer being sued for declining to print a call for abortion on demand, or a Catholic bookshop for refusing to distribute the latest best-seller from Richard Dawkins. Moreover, this looks like a deliberate choice. Decisions by courts are rarely as constrained as they look; and the Supreme Court was by no means bound to reach the result it did. It could, for example, have said quite plausibly (as the lower courts had) that Ashers were not being asked to endorse the statement on the cake. But, fortunately, it did not do so.
Why, then, only two-and-a-half cheers? There are two reasons. One is that however welcome this decision is, it is limited in its import. It was all-important that this was a special cake which Ashers could truthfully say they would not supply to anyone at all. But this feature will not always be present. If Ashers Bakery had been a caterer that refused to cater at a same-sex wedding, something arguably just as repugnant to conscience (since it involves participation in the celebration of something regarded as deeply sinful), one suspects they would still be able to be sued today. And whatever the position on non-speech, speech remains another story.
Amid the euphoria in Belfast, we have to remember that as recently as three months ago the High Court in London tartly dismissed a plea that Catholics’ right to manifest their religion gave them any right positively to speak their mind by persuading women outside an Ealing abortion clinic not to use it; this was not, it said, what freedom of religion was about at all. The battle for conscience, in other words, is by no means won.
The other is more general: the secular view of equality and human rights, firmly embedded in the law and in the reasoning of the Supreme Court, remains fundamentally flawed. At least since Rerum Novarum in 1891 Catholics have accepted a commitment to rights inherent equally in each of us. But there is a difference. Rights exist to allow a person to aspire to what is God-given and right, both for himself and the common good: even though we are given free will and can choose how to exercise those rights, there can never be any doubt as to what ends they ought morally to be turned to.
The secular view, by contrast, remains the deeply unfulfilled and illogical one that free will, though said to be derived from human dignity, is an end in itself; if that free will is directed towards same-sex marriage or unworthy ends, any attempt by others to direct it instead to proper purposes is not only misguided but wrong. True, the bakery won despite this in the Ashers case. But that believers’ rights to follow their conscience should still have to be carved out of such a perversion of the idea of a human right remains deeply unsatisfying.