The moral of the gay wedding cake row: the law can’t create tolerance

A Christian walks into a Muslim sign writer’s shop and orders a placard. He says it should carry a cartoon of the prophet and the slogan Muslims Go Home. The sign writer is deeply offended and says he cannot execute the order. The customer is outraged at the discrimination, is supported by the equality commission, sues, and the sign writer is fined £500 plus costs.

I think most people would find such a saga absurd. Why did the Christian not acknowledge a difference of opinion and go elsewhere for his placard? Yet that is the gist of the case this week against Mr and Mrs McArthur, owners of Ashers Baking Company in Belfast. They could not bring themselves to ice a cake with the slogan, Support Gay Marriage, which they strongly oppose and which is still illegal in Northern Ireland. It had been ordered by a gay rights activist, Gareth Lee, in honour of Northern Ireland’s first gay mayor, Andrew Muir of North Down. Muir is by all accounts a brave and outspoken champion of gay rights in a province of the United Kingdom still widely hostile to the idea. Lee had his cake baked in more tolerant Bangor.

What is Belfast's 'gay cake' case?

The judge took the view that the refusal to write the slogan was direct discrimination against Lee’s sexual orientation. The McArthurs denied this, retorting that they sell cakes to many gay people; it was the slogan that neither they nor their staff could write. They would have felt the same had Lee been heterosexual. The judge chose to disagree, saying in effect that their action was no different from a restaurant refusing to serve a black person. To my mind, a better parallel would be the Catholic Herald refusing to publish an anti-Catholic tirade.

That gay marriage is still illegal in Northern Ireland is a grim comment on Britain’s long and incompetent custodianship of Ulster’s government. It lacked the guts to unite the liberal values of a so-called united kingdom. I therefore sympathise with those determined to keep up the pressure. Gay marriage will come to Northern Ireland one day. But the reality is that this will take much persuasion of hearts, minds and beliefs, many of them (like the McArthurs) with prejudices but sincerely held.

Hard cases make bad law. Cases involving religious belief are notoriously hard. We argue over whether adopting parents should be allowed to stipulate a child’s religious background. Should church schools be allowed to exclude local children for failing to attend communion? Should employers be forced to ban religious jewellery as signifying exclusivity, or forced to permit it as signifying inclusivity?

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In America next month, the US supreme court is due to rule on same-sex marriage. If, as expected, it rules in favour, it will validate years of campaigning by gay rights groups, but it will tear open wounds that can truly heal only with time and persuasion. Reactionary opponents are already plotting retaliation. Thirty-seven states have legalised same-sex marriage, but almost all have done so only by conceding exemptions. Most allow “religiously affiliated organisations” to deny goods and services to gay weddings. In many states, individuals can deny gay men, lesbians and other groups accommodation and even jobs, claiming the constitution’s “free exercise” of religious belief.

A recent analysis in the New York Review of Books by the law professor David Cole points to the danger in such exemptions. He argues that the law cannot directly favour all beliefs. “The state violates no constitutionally protected religious liberty by imposing laws of general applicability … on the religious and nonreligious alike.” Thus in 1990 the supreme court ruled that a native American tribe could not claim exemption from anti-drugs laws by claiming the drug peyote as “an integral part of its religious ceremonies”. To allow someone’s professed belief to trump the law of the land, says Cole, “would in effect permit every citizen to become a law unto himself”.

So far, so rational. Yet the reaction to the 1990 ruling was immediate. Outcries from both left and right of the spectrum declared the judgment an offence to the first-amendment freedom of religion and speech. This in turn triggered America’s 1993 “religious freedom restoration act”. The effect was to restore native American practices, but also to licence state legislatures to allow discrimination against gay marriages on grounds of religion.

Most English people who get to know Northern Ireland tend to be charmed by it, yet shocked at its ongoing factionalism

Cole is adamant that the secular law must enjoy primacy in any modern society. Christians may cite the Bible and Muslims the Qur’an to justify acts of exclusivity. But while the law should not suppress belief, it must suppress manifestations of it that harm others. As the quote, often attributed to the American judge Oliver Wendell Holmes, says: “The right to swing my fist ends where the other man’s nose begins.”

Yet modern antidiscrimination laws enter the fray long before any nose is reached. No one was seeking to punch Lee on the nose or harass him – though members of Ireland’s LGBT community are certainly harassed in other ways. Discrimination law now disciplines even the swinging of the fist. It seeks to stop “indirect” discrimination, even “unconscious” discrimination. It declares offence to be caused merely if an individual says so.

The result is an uncomfortable sense that some noses are more sensitive, and easier to “offend”, than others. Muslims are sensitive to offence just now, but after the Charlie Hebdo case they are told, in effect, to shut up and suffer. But there is little sign of any equalities commission taking on those offended by church schools excluding irreligious applicants, or London clubs excluding women, or those daily humiliating immigrants, the old or the mentally ill. The truth is, I am offended, you are thin-skinned, he is plain unlucky.

The slights, sometimes petty, sometimes cruel, that afflict any community cannot be regulated by the criminal law. The crooked timber of mankind cannot be straightened at the crack of a legal whip. Most English people who get to know Northern Ireland tend to be charmed by it yet shocked at its ongoing factionalism. Homophobia, religious prejudice and creationism are still endemic. Muir has called for “respectful dialogue and commitment” on gay marriage, yet he welcomed the conviction of the McArthurs. It will surely just exacerbate the province’s divisions.

Having failed to bring greater religious tolerance to Northern Ireland, the British government hopes to expunge its negligence by enforcing change through the pettier applications of the law. That is not the sensible way. This prosecution was a mistake. The law can be right, but it can still be an ass.

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