William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I’d cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!
From A Man For All Seasons by Robert Bolt
I wasn’t going to write about the Asher’s bakery case. I’ve posted on other sites, here, here and here and there didn’t seem to be much to add. But this post is going to be not so much about the case itself, as about the way those Christians who disliked the outcome chose to express their disapproval.
Overall, the reaction from the pro-Asher’s faction was a prolonged howl of “It’s not FAIR!” The law is supposed to be all about fairness, so if this charge could be sustained, then it would be a very damning criticism. But although the protesters were convinced that the law was wrong, they offered no clear explanation of how or why it was wrong. This made any kind of productive discussion with them a bit…..difficult. What was unfair? What did they wish to change to make it fair?
Maybe the legislation under which the case was brought needed changing in their view. But which bit and how?
Well, if you changed the law so as to remove protection from sexual orientation, that would take away a major ground in the case.* But I did not get the impression that any of the protesters actually wanted to remove the protection of the law from people of different sexual orientations. Maybe they did, and just didn’t want to admit it, but I have to say that that was not the impression I got. So what did they want?
I could not help feeling that, although they would not actually say so outright, many of those who protested at the judgment felt in their hearts that anti-gay prejudice was acceptable in a way that racial prejudice wasn’t. “Why didn’t he just go and get the cake from another bakery?” was a recurrent theme. There were some who suggested (without a shred of evidence) that it was a “sting”, that the plaintiff had gone to Asher’s in the hope of being refused so that he could sue them. The implication was that in that case, he was more deserving of condemnation than sympathy.
But nobody would have suggested that a customer who was discriminated against for racist reasons “ought” simply to take their custom elsewhere. And nobody would suggest that someone who uncovered racism in a bakery’s supply policy had done a shameful thing, even if it was through a sting. We would regard the exposure of racism, however it came about, as a great public service.
The chief ground of complaint seemed to be that the law should not oblige anyone to do anything contrary to their conscience. I think many of us will have some instinctive sympathy with this idea. But as always, the devil is in the detail. How would a conscience clause that over-rode all other provisions of the anti-discrimination law work (if that was what was wanted)?
“Conscience is King” is a fine thing to support when the conscience in question chimes with your own. But suppose the conscience belongs to a white supremacist? Must she also be allowed to refuse any service which conflicts with her values?
Much was made of the fact that the refusal was not to provide a cake for a gay man but to provide a cake promoting Same Sex Marriage (SSM). But if conscience is the determining factor, then this distinction is of no importance. My conscience may tell me that it is not only wrong to bake a cake which contains a message celebrating SSM but it is wrong to bake a cake, however discreetly decorated, which is for a gay civil partnership, because even by doing that much I am helping to celebrate what is morally wrong. Or my conscience may tell me not to allow my infant child to have a life-saving blood transfusion, because that is forbidden by the bible. Or my conscience may tell me that I should kill a young woman because her behaviour has brought dishonour to her family and the community from which she comes. Are all these to be beyond the reach of the law? If not, how will you frame the law so as to draw the line?
Let me return to Sir Thomas More (as represented in Bolt’s play) with whom I started. He also came into conflict with the law, also because of a marriage which his conscience would not allow him to support. But what he recognised was that nobody was above the law and nobody was beneath it either. The law sheltered the greatest devil as much as it would the greatest angel. You could not dis-apply it to protect those you favoured or exclude those you didn’t.
More was of course a lawyer himself and he would not have refused his services to the greatest villan that lived or to a cause which was directly contrary to everything he held dear. That is because there has for hundreds of years been a rule at the Bar called “the Cab Rank Rule”. Under this rule every barrister is obliged to take on any case which they are asked to, provided that it is within the branch of law where they profess to practice. They may not refuse to represent a person, however profoundly they disagree with them. This rule is in place to ensure that nobody is denied representation because their cause is unpopular or because they are held in public contempt. The courts must determine whether the unpopular cause can be allowed or whether the alleged criminal is guilty.
The McArthurs (directors of the bakery) were guaranteed the services of a lawyer when they asked for one. It made no difference whether the lawyer they wanted was a gay atheist, passionately pro-gay marriage or a Christain fundamentalist, utterly opposed to it. Whatever the lawyer’s personal views, their duty was to represent their client as best they could. If a lawyer can act to promote a cause that she profoundly disagrees with for the sake of a larger principle, surely a baker can decorate a cake with a slogan they disagree with for the sake of promoting a kinder, more tolerant society in which nobody has to fear that their skin colour, or sexual orientation, or ethnicity, or religious beliefs will cause them to be treated like a pariah?
*Because the action was brought in Northern Ireland, even if sexual orientation were excluded as a basis of claim, the plaintiff could still have brought an action for discrimination based on his political views, which is also prohibited in N.I. -something which I was not aware of until I read Stephen Graham’s excellent blog post on the case (link above). But this didn’t seem to make much impression on the protesters, probably because most of them didn’t come from N.I. so did not perceive the political rights aspect as likely to impact on them.