Supreme Court ruling on gay marriage cake is a triumph of liberty over equality
“A man can not have his cake and eat his cake,” wrote Thomas, Duke of Norfolk, to Thomas Cromwell, English lawyer and parliamentarian, in 1538. You cannot have a right to liberty and a right to equality in the same measure. “Any genuine contest between liberty and equality is a contest liberty must lose,” writes Ronald Dworkin, American jurist and philosopher.
When gay activist Gareth Lee first sued Ashers Bakery for refusing to bake a cake with the slogan “Support Gay Marriage”, the lower courts slammed down the gavel of equality. By discriminating against Mr Lee, devout Presbyterians Daniel and Amy McArthur had violated the Equality Act 2006 and the Fair Employment and Treatment Order 1998 (FETO), the judges ruled. The Equality Commission for Northern Ireland supported Lee’s claim.
Five years later, five Supreme Court (SC) justices unanimously hammered down the gavel of liberty, trumping the tyranny of equality. Ashers Bakery is free to object to the “message” of gay marriage, they ruled. More than that, they are free to reject orders from anyone—gay or straight—who would coerce the Christian bakers to print a message violating their freedom of religion and expression.
Under articles 9 and 10 of the European Convention on Human Rights (ECHR), the bakery and its owners have the right to freedom of religion and expression, the Supreme Court justices argued. Further, “obliging a person to manifest a belief which he does not hold” is “a limitation on his article 9(1) rights”, the judgement stated.
“Any genuine contest between liberty and equality is a contest liberty must lose.”
Interestingly, the judges drew on a 2017 judgement where a Muslim petty officer was deprived of his right to freedom of conscience when he was forced to be present at Christian prayers. Petty Officer Gregory Laramore, who enlisted when he was a Christian, later converted to Islam and requested “to be exempted from all Christian activity in the [Force] and other religion other than Islam”. The court ruled in favour of liberty and Laramore.
In my 2016 Rebel Priest column on the Ashers Bakery case, I argued, first, for the principle of liberty. Since a private business is a free transaction between two consenting parties, none can be coerced into providing or purchasing goods and services from the other. Customers who disagree with the views of a business can, in turn, respond by boycotting the business. Perfocal has now retaliated against Christian Institute by refunding the fee it took to photograph the Christian owners of Ashers Bakery after the SC judgement. Fair enough, I say. Freedom of choice applies to both consumers and businesses. The market, not the state, should determine winners and losers.
Second, I argued that Ashers Bakery did not refuse to bake a cake for Mr Lee “on grounds of sexual orientation”. The problem was not the gay customer, or the cake, but the icing on the cake with the “Support Gay Marriage” slogan. “The bakers were not discriminating against Mr Lee. They were discriminating against an idea and an ideology. They have every right to do so. The judges have failed to uphold the difference between discriminating against ideas and discriminating against people,” I wrote.
The Supreme Court judgement explicitly stated my second reason as the primary basis for its ruling. “The reason for treating Mr Lee less favourably than other would-be customers was not his sexual orientation but the message he wanted to be iced on the cake. Anyone who wanted that message would have been treated in the same way,” it declared.
But the judgement raises more questions. What if Mr Lee has a gay wedding and wants Ashers Bakery to provide a cake inscribed with no objectionable text for the reception? According to the judgement, Daniel and Amy McArthur believe that “the only form of marriage consistent with Biblical teaching (and therefore acceptable to God) is that between a man and a woman”.
Should they be coerced into baking a cake for the reception? Most conservative Christians, who hold to biblical teaching on marriage, would contend that providing any goods or services for a gay marriage amounts to supporting a novel institution, i.e. gay marriage, indeed a fiction and a fraud, they so profoundly disagree with.
Would the SC judgement compel a Christian printer to print wedding invitation cards for a gay couple with the words: “Linda Marie and Elizabeth Lee cordially invite you to attend a marriage celebration as they exchange vows of marriage on November 4, 2018 at 6 pm in the Botanical Gardens, Liverpool”?
Citing EHRC Article 9(1), the SC clearly concedes that one cannot be obliged to manifest a belief which he does not hold. It quotes Lord Dyson, whose principle, it says, applies to both political opinions and religious belief: “Nobody should be forced to have or express a political opinion in which he does not believe.”
What if Mr Lee had a gay wedding and wanted Ashers Bakery to provide a cake inscribed with no objectionable text for the reception?
The SC ruling distinguishes between promoting a campaign and being associated with it. Baking a cake with “Support Gay Marriage” slogan is actively promoting a cause; catering for the reception is still being associated with it. “Mrs McArthur may have been worried that others would see the Ashers logo on the cake box and think that they supported the campaign,” the judgement reads.
However, the justices seem to duck the thornier problem of association: “But that is by the way: what matters is that by being required to produce the cake they were being required to express a message with which they deeply disagreed,” they pronounce, leaving an ambiguity sure to haunt future cases (italics mine).
The issue, then, is whether participating in a certain act or providing a certain product or service is the expression of a political or religious belief. The solution is not coercion, but liberty. In such cases, one of the keys to understanding liberty is the right to private property, which is the manifestation of the person’s physical and intellectual labour and includes goods and services produced. In a free society, Ashers Bakery should have a right to freely market their private property without coercion from Gareth Lee or the state.
But in a culture infected with the doctrine of wealth re-distribution, private property is itself under fire from churchmen like Archbishop Justin Welby and politicians like Jeremy Corbyn. To divest a person of the right to private property is to reduce the person to slavery; a slave has no right to private property, he is someone else’s private property.
Ironically, it is Mr Lee who is whining to the media about how Ashers Bakery made him “feel like a second-class citizen”. But what about making Mr and Mrs McArthur feel like slaves by depriving them of their private property, in this case their labour, and coercing them to do something that violated their most basic freedom? Conversely, the actions of Gareth Lee were not restricted in any way. He was free to place an order. Ashers Bakery was free to reject his order. Lee was then free to go to another bakery and place an order there.
I’d rather be a second-class citizen who is turned away from a business and can go to another business, than a slave who is stripped of his liberty and private property and chained to the whipping block of equality. Aristotle was right when he said: “Equality may exist only among slaves.” We are not talking about all men being “created equal” or having “equal rights before the law”. Ordering a cake is not a human right. Lee was not deprived of a “right”—but a “want” he could secure elsewhere.
The principle of liberty means that whatever one might think of homosexuality, if it occurs between willing participants, then the rest of us must allow this. Gareth Lee should rejoice that he has the liberty to be gay. But he and the state cannot use this freedom to restrict the freedom of others. Indeed, as John Stuart Mill noted, the only purpose for which the state can rightfully exercise power over “any member of a civilised community, against his will, is to prevent harm to others” not because it will make someone “happier”.
That is why the motto of the French Revolution that the Left subscribes to, Liberté, égalité, fraternité is fatally flawed and bound to collapse under the weight of its own internal contradictions. In his Essays on Freedom and Power Lord Acton wrote: “The deepest cause which made the French Revolution so disastrous to liberty was its theory of equality. With this theory of equality, liberty was quenched in blood and Frenchmen became ready to sacrifice all other things to save life and fortune.”
“The deepest cause which made the French Revolution so disastrous to liberty was its theory of equality.”
That is why the American Revolution that conservatives subscribe to, is a beacon for freedom, with its famous phrase sanctifying “Life, Liberty and the pursuit of Happiness” as “inalienable rights” in the American Declaration of Independence. The US Constitution mentions “liberty” three times—in the very first paragraph referring to it as the “Blessings of Liberty”. Not once, does it mention “equality”. No wonder, America has the Statue of Liberty (ironically a gift from the French!) not the Statue of Equality.
“Are liberty and equality ‘reconcilable’?” asks ethicist and political philosopher James Sterba. They can be reconciled if people who are at liberty choose to treat others equally, he says. But they are not as such required to do so. “Some will, and some will not; some will on some occasions and not on others; and so on.”
The Supreme Court judgement is a milestone in the direction of preserving liberty over equality. It must not allow itself to be bullied by the despotism of equality.
(Originally published in Republic Standard)