The gay cake controversy

In July 2014 a gay rights activist named Gareth Lee ordered a cake from Ashers bakery in Belfast. The commission was for a large square sponge bearing the legend ‘Support Gay Marriage’ and the logo of an organisation called QueerSpace. It was also to feature Bert and Ernie, the Sesame Street characters whose sexuality is the subject of much affectionate innuendo in the LGBT community and beyond.

Two days after taking the order, Ashers contacted Lee to inform him that they would not be fulfilling it after all. A cake bearing a slogan in support of gay marriage was, said the owners, at odds with their beliefs. As Christians, the McArthurs could not reconcile themselves to expressing in icing a sentiment that they knew in their hearts to be contrary to God’s plan.

Upset and angered by this rebuff, Lee reported the bakery to Northern Ireland’s Equality Commission, who agreed to support him in a legal case against Ashers. The ensuing action took several months and divided the people of Northern Ireland, thousands of whom took part in demonstrations either for or against the McArthurs’ right not to bake what has become known as the ‘gay cake’. And last Tuesday Lady Justice sent down her verdict: in the opinion of district judge Isobel Brownlie the bakery had illegally discriminated against a gay customer and was to pay Lee £500 in damages.

That the gay cake should have caused such a stir is an indication of just how far Northern Ireland has come since the Good Friday Agreement; but it is also, in some ways, an indication of how far ‘the Six Counties’ still have to go. Northern Ireland is a region in recovery from a long and bloody civil war, a war in which two forms of Christian fundamentalism were mapped into, and served to toxify, two opposing nationalisms. Post that conflict, religion is subject to the same pressures as it is elsewhere in the world, with the result that many Christians are experiencing what we might call a crisis of adaptation. The resistance to gay rights is a part of that crisis. Northern Ireland is the only part of the UK not to have passed a law allowing same-sex marriage; and last week’s vote in favour of same-sex marriage in the Republic of Ireland leaves it looking more isolated still.

But the gay cake story also has a general resonance, and it is for this reason (among other, less high-minded ones) that it has caught the attention of the world’s media. For the conflict at the heart of the Ashers controversy is one that is common to all liberal democracies. This is the conflict between two kinds of rights: ‘negative’ rights and ‘positive’ rights. It is no exaggeration to say that all our discussions about rights and freedoms – whether on the limits of free speech or the right to work or the legalisation of medical marijuana – bear on this fundamental distinction.

That distinction can be simply stated. Negative rights have human freedom, or ‘liberty’, as their principal focus; they impose on others a negative duty – a duty not to do a certain thing. My right to privacy imposes on others a duty not to read my mail, while my right to life imposes on others a duty not to shoot me in the head. By contrast, positive rights are rights that secure some service or thing for the right-holder; they impose on others a positive duty – a duty to help, or provide for, the right-holder. My children’s right to an education imposes on the Government of Western Australia the duty to provide that education (or at least to provide facilities and teachers in pursuance of that education), while my right to vote for or against that government imposes on the WA Electoral Commission the duty to collect and count my vote.

In the dispute between Lee and Ashers bakery it is clear that these two kinds of rights are in conflict. The McArthurs’ freedom to believe as they want, and to act (or not act) in accordance with those beliefs, is at odds with Lee’s right to non-discrimination. Health professionals who object on principle to abortion or assisted suicide present us with a comparable dilemma, as do hoteliers and B&B owners who refuse to let their rooms to gay couples. Those who take the health professionals’ side – or the side of the hoteliers and B&B owners – are basing their arguments in negative rights, while those who take the opposing side are adopting a positive rights approach.

Clearly there has to be some give and take here. A society in which people were compelled to perform actions that ran contrary to their deepest principles would not be a happy place to live, while a society in which people could refuse services to others on the basis of their race or gender would be equally disagreeable (and indeed unworkable: imagine a teacher who refused to teach Asians, or a female nurse who refused to treat men). But keeping both these scenarios at bay can often prove enormously difficult. Recently in the US there is a concerted effort on the part of conservative politicians to use ‘conscience clauses’ to stymie legislation and spread the influence of religion in the process. In 2013, for example, opponents of ‘Obamacare’ attempted to introduce a conscience clause that would have allowed employers to deny birth control coverage to their employees if it offended their (i.e. the bosses’) beliefs. (The same issue has arisen in the pharmacological community, where a number of pharmacists have objected on principle to distributing birth-control medications.)

There is an element of irony in this. To a great extent, the freedoms we have – the freedom to speak, to assemble, to vote – were won in the teeth of religious opposition; indeed, the early clamour for rights was a direct and conscious challenge to the idea that rights belonged to Kings alone, that they were granted by God to certain individuals and not to humankind as a whole. That the religious should attempt to use these freedoms in order to re-establish their influence is thus a very striking development – one that may lead the cynics among us to regard with a certain degree of suspicion the way in which certain forces in Northern Ireland have responded to the gay cake row. The Democratic Unionist Party, which is led by Northern Ireland’s First Minister Peter Robinson and which has deep roots in the Protestant community, wasted no time at all in calling for a conscience clause to the region’s equality legislation, a clause that would allow businesses to refuse to provide services if doing so conflicted with their owners’ beliefs. No doubt this development (and the outbreak of ecumenicalism that followed it: the Catholic Church supported the proposal) has led secularists in Northern Ireland to exchange a few uneasy glances.

Nevertheless – and this, of course, is one of the core principles of secularism – religious people have the same basic freedoms as anyone else in society. One of those freedoms is freedom of conscience, which includes the freedom to believe (and to say) that gay marriage is an aberration. This much is not, or should not, be in doubt. The question is to what extent, and in what ways, this right should apply in the commercial and other public spheres.

In this case the law has got it wrong. For while civil rights activists will point out (correctly) that religious ‘conscience’ could be invoked in order to justify racism and sexism – and, indeed, to facilitate them: to keep Jews and blacks out of restaurants or women out of snooker clubs – the gay cake controversy is not a case of that kind. If Ashers had refused to serve Lee because he was gay it would be as guilty of discrimination as a pizzeria that refused to serve a customer because she was a Muslim. But the bakery was being asked, in this instance, to reproduce a sentiment its owners found profoundly disagreeable. It has been objected that Ashers’ owners should be able to separate their religious convictions from their fulfilment of customer orders; that Ashers is a business, not a religious organisation, and should behave accordingly. But would we demand that a Jewish baker make a cake depicting a swastika? Or that a Muslim baker make a cake depicting Muhammad? Tedious as such comparisons are, they can serve to isolate a principle or two, and those who supported Lee’s case against Ashers should consider whether they’d be doing the same if he’d ordered a cake reading ‘Defend Straight Marriage’.

I don’t like the McArthurs’ views – I don’t like religion full stop. But the battle for gay rights in Northern Ireland will not be won by humiliating a bakery named for one of the Twelve Tribes of Israel (a fair clue, by the way, of its owner’s proclivities). When gay marriage is legal in Northern Ireland – and I’ve no doubt it will be, one day – there will still be people who think it shouldn’t be, and they will have the right to express that view. Fortunately, liberalism is capacious enough to accommodate civil rights and basic liberties. It’s a difficult cake to make, to be sure, and you have to break a few eggs in the process. But as long as your scales aren’t out of kilter it needn’t turn out a complete disaster.