The Ashers case raises questions over the weight we should give to deeply held convictions in public life
Tobias Kelly, Professor of Political and Legal Anthropology, on the wider questions surrounding a baker refusing to make a cake supporting gay marriage
Image credit: Pixabay
Equality, freedom, religion and sexuality all seem to have come down to an issue of cakes.
In Lee v. Ashers, the Supreme Court has just ruled that a baker was not acting in a discriminatory manner in refusing to make a cake supporting gay marriage.
Back in 2014, Belfast based Ashers Bakers cancelled an order to make a cake for a man called Gareth Lee. Mr Lee’s cake was to have a picture of Burt and Ernie from Sesame Street, a slogan supporting gay marriage, and the logo for Queerspace.
The owners of Ashers though eventually turned down the job, claiming it went against their conscientiously held religious beliefs.
However, following action from the Northern Ireland Equalities Commission, a Northern Ireland judge ruled that the bakers had discriminated against Lee on the grounds of his sexuality.
The owners of the bakery, saying that the decision risked “extinguishing” their consciences, appealed the case all the way to the Supreme Court.
The Ashers case does not stand alone. Pacifists, vegetarians, anti-vaccinators, communists, fascists, and those opposed to abortions have all launched legal claims in the name of conscience.
And although we might strongly agree or disagree with their positions, there is little to distinguish between them in terms of the strength and sincerity of their conscience alone.
Claims of conscience are often central to ways in which we think about morality and public life, but as the courts debate how we should treat each other with respect and dignity, conscience can be a problematic place to start: it can be subjective, unstable and deeply inscrutable.
In the US, similar cases have arisen after a florist refused to provide flowers for a gay wedding and a photographer declined to shoot a same sex-commitment ceremony.
Earlier this year, another cake also made it to the US Supreme Court, when an evangelical Christian cake designer refused to make a wedding cake for a same sex couple.
In Scotland, in a related but in many ways very different case, two Catholic midwives were told by the Supreme Court that they did not have a right to a conscientious objection to supervise staff involved in abortions.
Such cases are often popularly understood as a clash between the rights of the religious and others to live according to their most deeply held commitments.
However, they are probably best seen as a dispute over the weight we should give to any deeply held convictions in public life.
Indeed, legal cases are often framed in precisely these terms, with litigants arguing that the rights of all people to live according to conscience, whether Christian or Jewish, religious or atheist, are in danger of being infringed.
Conscience and religion after all are not the same thing, conscience being both wider and narrower than religious faith.
Religious people are clearly not the only people who worry about their conscience; and conscience is not all there is to religion, or at least most types of religion, where ritual, doctrine and community can also play a significant role.
Two issues were at heart of the Ashers case. The first was whether refusing to make the cake amounted discrimination against Lee because of his sexuality.
The second was whether obliging the bakers to make the cake infringed on their freedom to live according to their beliefs.
In the end, the case hinged on whether the refusal to make the cake was discriminating against a person, or whether it was simply a refusal to endorse a political message. The Supreme Court ruled that Ashers did not refuse to fulfil the order because of Lee’s sexual orientation, arguing that the “objection was to the message on the cake, not to the personal characteristics of Mr Lee".
The merits of this particular decision are still being debated, and it is causing particular uncertainty.
We might wonder for example, how the court would have ruled if the bakers had refused to make a case supporting mixed race marriage, and how we would feel if they had gone the same way.
Either way, claims of conscience have been central to many of the legal and political arguments around the case.
However, it is not at all clear what we are talking about when we talk about conscience, and whether it is an unqualified good.
Conscience can be understood as a thought, an intuition, or a feeling. It has been located in the head, the heart, on the shoulder, in texts or in the divine.
The issues that we argue about in terms of conscience have also included the taking of oaths, vaccination, and conscription.
And we might ask here why sexuality seems to be the key issue of conscience in the early twenty-first century, rather than say, poverty or war.
Although most of us like to think we have a conscience, there is little agreement on what form it takes, what it should be concerned with, and what significance it has for others.
From the outside it can also be hard to tell the difference between a sincere conscience and self-interest or fraud.
It can be very difficult to know what conscience looks like when we come across it. In practice, we tend to accept only those consciences that we agree with.
There is also nothing in conscience, in and of itself, that necessarily makes it a virtue; people from Mussolini to Martin Luther King have all made claims in its name.
In this context, the courts have often been extremely reluctant to rule of cases of conscience, and it is notable in the Ashers case that the Supreme Court focused on the issue of discrimination and had very little to say about conscience itself.
More broadly though, it is one thing to say that we should all try and act according to conscience, whatever that might be.
It is quite another to say that distinct legal rights and privileges should be attached to anyone who makes such a claim, and that these rights should trump those of another person.
Tobias Kelly is Professor of Political and Legal Anthropology at the University of Edinburgh
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