Thursday, May 21, 2015

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Outside the Box: Take 14

Sean Mallory turns his caustic eye towards the Ashers case and focuses on those who think they can freely practice their religion on others. Sean Mallory from Tyrone is a wry and sometimes caustic observer of politics both nationally and internationally. He provides TPQ with its own Outside The Box commentary.


  • Freedom of Conscience – the Ashers debacle


Well, Bert and Ernie have now been legally awarded their cake and are by law entitled to eat it.  The McArthurs, owners of the infamous ‘heterosexual cakes only please’ law breaking bakery have no regrets.  Guilty by law but innocent in God's eyes. A belief in its own that calls in to question the civil institution of the law and its right to make judgements that run contrary to God’s law!!!!

The judgement which ruled against them, was based on Ashers operating as a business for profit – not prophet mind you – and as such their own personal beliefs should not have entered in to their decision to refuse to bake the cake.

The judgement has been hailed as victory for equality for the Gay community and a loss to society as a whole, through an attack on freedom of conscience.

Support for Ashers has mainly come from the crew of the Ark (DUP) supporters but with a selection of religiously conservative Taigs.  Although not as a collective front on Calvary Hill for the Cross borne by the crew of the Ark is purer and unsullied than that borne by the Taigs – one man’s cross is another man’s axe!

Sammy Wilson has condemned the judgement and called on for a change in the law to keep in step with the majority of people’s views here and not to be so antiquated. 

Quite an astonishing demand to make considering it was the same Wilson who while as Finance Minister at Stormont, and in relation to the Defamation Bill, and working against the majority of people’s views, took a unilateral decision, described as outrageous by a London based Press freedom body, to halt the extension of libel reform to Northern Ireland without consulting other parties on the issue. He was supported in his stance by party colleague Ian Paisley Jr who led the attack on it at Westminster.  Must have been what God ordained. 

The media has reported on both aspects of this case, with certain publications, clearly stating their support for Ashers through highlighting the impact this decision will have on freedom of conscience while at the same time stating a quiet respect for the law, except that is, this judgement. 

So what is freedom of conscience?  There are many definitions and accounts of what it is, how it is endorsed by various international global bodies, how it has been stifled, how it has been confused with freedom of speech or expression and of how it has been censored. 

It could be described as the freedom of an individual to hold a viewpoint independently of others, or a right to hold dissenting beliefs that run contrary to popular culture and free from repression from holding such beliefs.

But more importantly we should ask what it isn’t?  And what it is isn’t, is the right to freedom of bad actions. An individual person is not entitled to enforce their viewpoint, thought or belief on another individual to the extent that their action results in a loss of an individual’s civil liberties.  Freedom of bad actions does not exist and the Law is there to ensure that doesn't happen.

And in Ashers' case that is exactly what has occurred.  The McArthurs have every right under freedom of conscience to hold whatever viewpoint they so wish but what they don’t have is the freedom to make decisions which impact upon the rights of others in a society where those rights are institutionalised and guaranteed by law. 

Should a Neo Nazi walk in to a Jewish bakery here and ask to have a cake baked commemorating Hitler’s birthday, the Jewish baker is quite within their right to refuse to bake it as Neo Nazism is not enshrined in law.

Should a Muslim production line technician on a weapons assembly refuse to work because the final product is sold to Israel to be fired on Gaza then that Muslim has no right to refuse to work for there is no law forbidding its sale to Israel nor stipulating their use of it.

The UUP have come out in favour of the decision but have expressed that it should have and could have been dealt with in a more mature manner without the public purse having to incur the expense of a trial.  They may have been right but the fact is that they, Ashers and the plaintive, were unable to resolve their dispute and thus the need for the courts. 

Once it entered the realm of the courts Ashers had very little chance of success for the law is the law.  Precedent cases in England, B&Bs and bakers also, had set the model and they, feeling aggrieved that they should have to work against their conscience felt that they could call upon the law to act in their favour and endorse their stance.  That may have had more chance of success if no law had been broken or there was no law to be broken but the fact remains that they broke the law and thus were never likely to succeed. 

The morality or ethics of their stance was never going to be the deciding factor.  It was always going to be the rule of law.  So Wilson, like many of his fellow Ark-rights, is perturbed that the law hasn’t worked in their favour and as such has demanded a change to reflect that annoyance.   

The law is the law but only when it suits.

30 comments :

larry hughes said...

I the homosexual equality crusade is very condescending towards the vast majority of people. Calling people archaic or somehow out of touch with society because they question the homosexual 'in yer face' agenda is insulting. Did homosexuals just invent the wheel or something? The campaign should be termed the campaign for rude equality rather than gay equality.

larry hughes said...

https://www.youtube.com/watch?v=i2jXIWPFYYQ

DaithiD said...

I think the article nails whose rights rights are being transgressed in the first instance.Note the lack of majoritarian sanction in what is essentially a minority issue (my philosophy (in a studded codpiece!)). We can tell what is right or wrong without deferring to consensus.

Robert said...

Sean,

A well argued position that provides food for thought but your perspective is not without flaws and anomolies.

'The law is the law but only when it suits.'

Hardly an unique situation that pertains to Christians or others who object to the Asher's judgement alone. Whatever we may object to in life, when things don't go our way as they invariably don't, the first exclaimation is always one of injustice followed by the desire for remedy. The remedy to bad law is better law. The Asher case is that of bad law.

The better law in a society riven by competing ideas and practices is clearly one that serves pluralism and not sectionalism. It was not for the public sphere in the form of the Equality Commission and the state, under the guise of equality, to be siding with one of two competing private spheres that has ended, to para phrase Anthony's introduction with those who think they can freely practice their sexuality on others doing just that.
If as you assert,..' an individual is not entitled to enforce their viewpoint thought or belief on another individual to the extent that their action results in a loss of an individuals civil liberties.', then a bakery in Ballymurphy, if one exists, is legally obliged to supply me with a cake carrying the message 'SUPPORT THE PARAS'. A demonstrably bad action on my part but one fully conducive with the parachute regiment being enshrined in law and set out in the examples you employ here. The proprieter like the McArthurs, it would seem have no civil liberties. For want of a better phrase the law now forces them to take it up the jacksy.

The real anomaly to be found in all of this was perhaps best grasped by Fionola Meredith writing in the Belfast Telegraph.

'If Ashers had refused to serve Gareth Lee, the LGBT activist who ordered the cake, because he was gay, then that would have been a clear act of discrimination, and the bakery's owners would have deserved to be prosecuted and fined. But that's not what happened. The message, not the customer, was the problem for Ashers.

What makes the whole thing even more of a sorry farce is that the State itself, in the form of the Stormont Assembly, itself rejects marriage equality. Bake a cake about that!'

To borrow from Fionola,the butcher, baker and candlestick maker are now legally obliged to service a matter that has no legal standing outside of coercing others into supporting it through services.

Tonyol Dublin said...

Ashers were so naïve in this case. If they had said, "yes, we will bake your cake, but the charge will be £500 and the proceeds will go to the National Front", the problem would not have arisen

Tonyol Dublin said...

Ashers were so Naïve in this row. If they had said "yes, we will bake your cake but the charge will be £500 and the proceeds will go to the National Front", the problem would have gone away to a willing baker.

larry hughes said...

Tonyol Dublin

that is the perfect remedy. Price the smug 'shit-stirrers' out of their smug stunts.

AM said...

But would the perfect remedy not have left Ashers open to the accusation of discrimination on the grounds that they overcharged one customer but not others on the basis of their sexuality or the message? Whatever stance we take on these things (and I tend to have reservations about these things being sorted out in courts or by police as I argued in respect of Jim Wells) I can't see how the "perfect remedy" could have worked.

larry hughes said...

Now-now Dr Mackers!

I know we are both susceptible to 5.30-6am starts but you really should get another coffee down that not inconsiderable 'neck' lol

I am toying with the idea of buying a 1.6 2 door Grand Vitara in the next few months. Researching the vehicle online I have noticed as much as 800-900 difference on the same model and same year.

People can charge what they like for an item, it results in the practice of shopping around. Should we be obliged to pay?

Had the bakery charged £500 for what it considered a lewd cake message it would have been their loss of trade if the potential buyer refused to purchase there. Though they run the risk of the SM gang among the LGBTC getting seriously turned on by the prospect of being shafted to the tune of £500.

AM said...

From Sean Mallory

Robert,

Most perspectives have flaws and anomalies as that is why we have debate and arguments....it’s only my take on the Asher’s debacle, which is from the perspective of abiding by law.

As you state it can sometimes rule in your favour and at other times against. It only ever rules against you when you have broken the law and that is what Ashers did – they broke the law. The moral or ethics of their stance was always irrelevant from start to finish. Truly indeed, the McArthur’s have civil liberties but when they are entering in to the public domain to interact with the public on a business platform, what they don’t have, as clearly stipulated under the law, is the right to enforce their freedom of conscience upon an individual seeking to enter in to a business transaction with them and which leads to discrimination against that individual – that’s breaking the law.

'The law is the law but only when it suits.' – I used this term to highlight the hypocrisy of Unionists, especially Wilson in this case, who rode rough-shod over the majority of people’s wishes when he single-handedly vetoed the appliance of the Defamation Bill to here, yet he screams at this ruling ... facism.

AM said...

Larry,

but I am still left to wonder does that not reproduce the grounds for action rather than remedying it? I am thinking of a bar or hotelier who each time a traveller came in increased the price of a pint to 100 quid. But did not do it for anyone else. That seems a sure way of bringing a court action. if I sell you a car in a private transaction I can ask what price I like. That I suppose leads onto another question is what takes place in the market place a private transaction? Even if I supported Ashers which I don't I fail to see how the price hike would remedy their problem rather than recreate it in another form.

larry hughes said...

If they are against lewd or sexually explicit orders but the law 'forces' them to comply, a high price may be a deterrent to those seeking to embarrass the staff.

Many hotels and pubs have put a block on hen and stag parties by the way. What is going to happen to that option now?

AM said...

This is one of the problems associated with it Larry - sometimes the cure is worse than the ailment.

larry hughes said...

yeah
I don't think buggery is a cure for piles either.

AM said...

Larry,

you sound like Nelson McCausland LOL

larry hughes said...

has Nelson got piles too lol

AM said...

he talks piles of dung! The world is 6000 years old and all that guff He was in the Save Ulster from Sodomy campaign I think.

larry hughes said...

if Nelson gets into the 1916 society time machine he could continue on to the beginning of it all. They really should get together.

Robert said...

Sean,

'It only ever rules against you when you have broken the law and that is what Ashers did – they broke the law.'

I sense that you are taking the piss?

The law delivers bad judgements against people who have not broken the law on a daily basis. That perhaps explains why the Birmingham Six, amongst others, were freed and Barra McCrory was forced to apologise to Máiría Cahill today. We appear to have adopted the American culture of litigation and the madness that that entails. Offend somebody today and they not only send you to Coventry they also send for the cops.

'..that is why we have debate and arguments..'

The debate and argument is best served when the issues are dealt with head on. What of my ordering a cake in a Ballymurphy bakery in support of the Paras? Does the proprieter break the law by refusing to service my request?

Simon said...

Robert asks "What of my ordering a cake in a Ballymurphy bakery in support of the Paras? Does the proprieter break the law by refusing to service my request?"

I doubt that the proprietor in Ballymurphy would be breaking the law by refusing to bake your cake in support of the Paras.

Very few human rights are absolute. Some, like the right not to be tortured are non-derogable. Others like the right to property or the right to freedom of assembly or association can be restricted.

The most common restrictions on human rights arise when there are conflicting human rights at stake or to protect the wider community generally.

Lets assume your Paras cake order isn't mischievous or malicious. Your right not to be discriminated against on the basis of your political opinion. ie. Support the Paras or your religion (if applicable in this case) would be unlikely to trump the rights of others (ie. jeopardising the shop-keeper's livelihood or property or safety) and would probably go against the interests of the wider community being such a contentious and inflammatory message.

In this way it would be akin to restricting your freedom of expression if you are encouraging racial hatred. That is an analogy only.

However it hasn't been tested in court and the shopkeeper might be happy enough for a few quid. He might also accidentally leave some expectorate in the cake.

Robert said...

Simon,

Thank you for grasping the nettle in the absence of Sean's willingness.

I doubt if we will see any element of consistency in legal judgements flowing from this controversy. Christianity and it's precepts have become unfashionable, the law is merely serving the current orthodoxy and expects the entirety of society to service it too. It is not the done thing not to assume the position.

AM said...

Robert,

it might come down to a case by case assessment on the premise that there is no one size fits all panacea.

Christianity has become unfashionable certainly in an Irish world that struggles with the logic of it. It is very hard to think the that church that did so little to handle the rape culture in its midst is capable of delivering any moral precepts when it rendered itself unfit for purpose. There is no reason for any society to be subject to the precepts of one religion or another. I see there is an interesting battle going on in the States where some Satanist Church is upsetting the apple cart in terms of the law, prising away the grip of Christianity. What irritates me is this sense of entitlement that those with faith think they have which they insist entitles them to practice their religion on others. I am not Catholic so I don't want someone of the Catholic faith practicing it on me, by denying me a service like a morning after pill solely because it is their religious belief, not mine. They can cite conscience all they want but my conscience tells me that I should be served and that I cannot be disadvantaged on the grounds of religious prejudice.

Simon said...

Robert, I have no idea what the legal outcome of such a case would be. In the Ballymurphy scenario the area itself would be a crucial factor in deciding if there was a legitimate reason to discriminate.

Refusing to bake a pro-para cake would be discrimination against political views but the question would be 'could the refusal be defended?'. Would the potential uproar or unrest if word got out be of sufficient weight to refuse the custom?

Anthony is right in that it would be by a case by case basis. With your example I doubt a Catholic owner (of whatever background) of a bakery in the City Centre or in another area less contentious than Ballymurphy would have any legal grounds for refusing to bake such a cake.

If there is no legitimate reason for refusing to bake a cake and therefore discriminating then the customer would have a solid case.

Conflicting rights are often difficult to measure and compare. Hence the difficulties during marching season.

Robert said...

Anthony,

'What irritates me is this sense of entitlement that those with faith think they have which they insist entitles them to practice their religion on others.'

While never finding you inconsistent this occurs to me as being so.

I don't detect any sense of entitlement on the part of the McArthurs other than not to have to service an opinion on same sex marriage that is at variance with their beliefs. That the refusal was religious rather than secularly based I find immaterial. He was never denied a cake merely the servicing of his opinion upon one. Had the roles been reversed and Gareth Lee had been requested to provide a cake supporting the prohibition of sodomy by the McArthurs I would have found a ruling against his refusal to provide that service no less injurious to his liberties to do so. As I see it, you want to afford Gareth an entitlement you want denied to the McArturs.

Robert said...

Simon,

The salient point that those supporting the ruling cannot get over, around or under is that Gareth Lee was never refused a cake because he is a homosexual. All this ruling has done is to establish his right to coerce others to service his opinion.

AM said...

Robert,

to the contrary, it is wholly consistent position, both with the line of reasoning I have put forward here and the logic argued throughout on this site and elsewhere about the need to stop people practicing their religion on others. People are perfectly entitled not to be discriminated against on the basis of other people's beliefs. Ashers, I imagine, would have baked a "straight marriage only" cake. Ashers discriminated against gay people who did not believe what Ashers believed they ought to believe. Hardly a just way to run a society. But Christians used to try this on in parks on Sundays, chaining up swings and the like, practicing their religion on children. Now they would get ridiculed if they tried it but it would hardly stop them protesting that they were being persecuted.

Had Gareth Lee been in the cake business and refused a cake to a Christian on which it was written "support heterosexual marriage exclusively", they would have been discriminating against people who were Christians and therefore should face the same sanction as Ashers. I can see no reason why they should be treated any differently.

Ashers are in the service industry. I would view it as I would a taxi driver refusing a gay couple a taxi because they wore pink scarves and the driver thought that endorsed a life style his religious opinion did not approve of. There is no more importance to be attached to the driver's religious opinion than there is to his sporting opinion. This attitude that I can refuse you a morning after pill, a registry office wedding, a B&B service, a letter through your door because it says "support same sex marriage", to me is wrong. If people have a religious problem with the morning after pill, they must be free not to take it. They should not be free to deny it to someone else.

AM said...

Robert,

that sounds like the defence for not being sectarian by asking a person what school they went to rather than their religion outright. It is a stratagem for the purposes of thwarting the counter. Good stratagems need good subterfuge to conceal them and this one seems weak. The people were discriminated against because they affirmed their gay identity which they are perfectly entitled to do. Compare it with telling a black person like Rosa Parks she could sit where she wanted on the bus so long as she wore no badge saying blacks and whites should be treated equally as that offended some of the passengers' religious sensitivities.

Robert said...

Anthony,

'Ashers, I imagine, would have baked a "straight marriage only" cake. Ashers discriminated against gay people who did not believe what Ashers believed they ought to believe.'

I am quite sure that Ashers would have supplied a "straight marriage only" as is their right. The service sector they occupy includes providing cakes not political opinion. The cake they were prepared to provide the political opinion they balked at. I can find no subterfuge in any of that. You welcome unionists here but I can think of no circumstance why you should be coerced to support the union either in the market place or the public space. Discriminating against unionists by refusing to do so?

Simon said...

Robert, "The salient point that those supporting the ruling cannot get over, around or under is that Gareth Lee was never refused a cake because he is a homosexual. All this ruling has done is to establish his right to coerce others to service his opinion."

I don't know about that, the judge on all points said it was direct discrimination. If it was indirect discrimination your point would stand. A heterosexual man could have bought an LGBT cake. If someone thinks you have a characteristic and treats you less favourably, that's direct discrimination by perception.

The defendants made the case that they had no knowledge or perception of the customer's sexual orientation.

The judge said "it must have been abundantly clear during those discussions that the plaintiff supported gay marriage and that in all the circumstances the 2nd defendant must either consciously or unconsciously have had the knowledge or perception that the plaintiff was gay and/or was associated with others who are gay."

"Same sex marriage is inextricably linked to sexual relations between same sex couples which is a union of persons having a particular sexual orientation".

Regarding the conflicting rights the judge said "whilst the Defendants have a right to hold religious views they are limited as to how they manifest them provided those limitations are prescribed by law; in this case the 2006 Regulations and the 1998 Order; and are necessary for the protection of the rights and freedom of others; the Plaintiff’s right as a gay man not to be discriminated on the ground of his sexual orientation; which is the legitimate aim."

AM said...

Robert,

I am quite sure that Ashers would have supplied a "straight marriage only" as is their right.

Which underscores the point being made in response - Ashers want the right to discriminate and deny service on the basis of Ashers' religious opinion. Ashers is supposed to be a bakery not a church.

The service sector they occupy includes providing cakes not political opinion.

But you just told me that they have the right to cater for a political opinion (anti-same sex marriage) and discriminate against political opinion. I could understand the point better had you told me Ashers would not allow a cake catering for the political opinion "support only heterosexual marriage". But you didn't. You told me it was their right.

Ashers were not coerced into supporting gay marriage: they were asked merely to bake a cake for people that did support gay marriage and they sought to discriminate against those people because their religious opinion is strongly anti-gay.