Having our (Gay) Cake and Eating It

The recent decision by the Northern Ireland Equality Commission to sponsor a court case against a bakery run by Christians who refused an order to provide a cake with a pro-gay marriage message has caused much debate throughout Ireland and beyond.

Leaving to one side the likelihood that the case will be dismissed by the courts since it is only legally possible to discriminate against people, not ideas (and there is no suggestion that the bakery refused to serve the prospective customer on the grounds of his sexual orientation), there is still much that is perplexing about this case.

It brings to light the tangled state of laws in the UK that seek to address conflicting rights, freedoms and responsibilities. Freedoms of expression and conscience are often seen to conflict with anti-hate and equality legislation. In truth, it is difficult to see how it could be otherwise.

There are (at least) two key issues involved: where ought we, as a society, to place ourselves on the individual freedom-social obligation spectrum and what provisions do we make for dissent from agreed or perceived social norms?

The resolution of the first of these is something that we continue to fumble towards like blind-folded people in a darkened room. The international human rights standard is that hate speech is something that ‘constitutes incitement to discrimination, hostility or violence’.  This, however, only helps us so far; various societies place the bar for ‘incitement’ at varying levels. The positive requirement to foster freedom of expression pushes the bar higher; the positive requirement to promote equality pushes the bar lower. It is clear that a refusal to serve a customer because of his perceived sexual orientation might more readily be seen as inciting discrimination than refusing to produce a pro-gay marriage message. Our stance on this depends largely on where we place the bar for incitement.

I am in favour of the provision of gay marriage and consequently of individuals’ rights to celebrate the landmark change in legislation earlier this year in England and Wales. I am also in favour of individuals being free to express dissent with any law of the land or any social, religious or political stance, creed or doctrine.  It is not easy to get the balance right, but I fall on the side of freedom of expression, even if that sometimes is offensive to others.

Not so long ago, anyone dissenting from the conservative moral norms enshrined in legislation in the UK and Ireland faced public censure and possible prosecution; that made for a cramped and, at times, openly repressive society. We have learned nothing from the past if we now do the same to those who dissent from liberal values (values which I espouse and view as being progressive): coercive liberalism is no liberalism at all.