On Tuesday Ashers Bakery were found guilty of discrimination for refusing to bake a cake iced with the message ‘support gay marriage.’ Whichever side of the debate you come down on it was some of the comments made by the Judge and the prosecuting QC which got me thinking. It seems the current legislation doesn’t understand the foundational nature of belief (for all people) and is therefore confused and confusing.
Consider some of these statements:
“the defendants are entitled to hold and manifest their religious beliefs in accordance with the law” (Judge Isobel Brownlie) – Absolutely right and fine.
“while the defendants have a right to religious beliefs they are limited as to how they manifest them” (Judge Isobel Brownlie) – Fair enough. I might have a deeply held belief that all left-handed people ought to be forcibly euthanized. The law does limit the extent to which I wish to practise my convictions. And that’s a good thing.
“To do otherwise [i.e. not limit manifestation of religious belief] would be to let religion dictate the law” (Judge Isobel Brownlie). Now, here’s where it gets interesting. Upon what basis do we decide what goes in the statute book? If it’s upon ‘no particular basis’ then the law is arbitrary and the state a tyrant. If it is on some basis then what exactly? Common sense? Tradition? The will of the majority? The will of the elite? Mmm . . . reason and history testify that these are not necessarily trustworthy. Nevertheless, choose whichever you favour. Now ask on what basis those authorities function? What is their epistemological grounding? Push hard enough and the answer will be ‘belief’ – belief in moral categories of right and wrong; belief in the value of human beings, animals, and green spaces; belief in the appropriateness of justice and punishment. You can’t run empirical investigation on those things – they are convictions, beliefs, held in faith by one or more people. In other words ‘religion’ (let’s call it belief) does dictate law, if the law is to be based on something and not nothing. So the secular state isn’t neutral. And so the belief (religion) based law is choosing to uphold one set of beliefs against another – which precisely is a heirarchy of rights – the very thing the state is trying to avoid.
So leaving aside the benefits and problems of the 2010 equality act related to the provision of goods and services, take a look at what’s actually going on. It prohibits the refusal of goods and services based on gender, race, religious belief, etc. The law, based on its fundamental beliefs, discriminates against someone for discriminating against someone based on their beliefs. Now, to some degree this is necessary and inevitable if you want law based on something, and not simply anarchy. But perhaps realising what’s going on, and getting it out in the open, would actually allow a much greater degree of liberty within the system. Personally I’m happy with belief-based law that criminalises discrimination against people – it accords with my beliefs. But I’d also like to see that belief-based law allow me freedom not to be involved in the endorsement of beliefs with which I disagree.
All this before we even get into possible unintended consequences of the Ashers ruling. Must a gay baker be compelled by law to decorate a cake with a message against same-sex marriage if he doesn’t want to? It seems to me that the proposed ‘conscience clause’ is a good idea that would benefit all. A Polish T-shirt printer would be at liberty to refuse to print a T-shirt with a BNP slogan on it. A feminist web designer would be at liberty to refuse to design a website for FHM. And an atheist printer would be at liberty to refuse to print my Christian tract. Of course all three are also at liberty to accept the work. It’s their choice. It’s how the free market should work. A ‘conscience clause’ with regard to the endorsement and promotion of beliefs within the current equality act would both protect against discrimination against persons, and protect the liberty of conscience of service providers. After all, the notion of the state coercing and compelling the sort of transactions outlined above, and criminalising those that refuse is alarming – especially since, as we have seen, the state is every bit as ‘belief-based’ as those they seek to punish.