Yossi Nehushtan and Stella Coyle: Ashers Baking (Part 1): The Supreme Court’s Betrayal of Liberalism and Equality

Much has already been written about the recent Supreme Court judgment in Ashers Baking, but the debate has so far omitted an important argument: that the Court has, once again, ignored the legitimacy of the values that grounded the discriminatory practice of the religious service provider. Judgments based on content-neutral considerations have previously resulted in ‘victories’ for gay rights, where sexual orientation has come into conflict with the expression of religious belief. Clear examples are the decisions in Bull (refusal to let a bed and breakfast room to a gay couple), Ladele (refusal to register a civil partnership), and McFarlane (refusal to counsel same sex couples on sexual matters). This time, the content-neutral reasoning of the Supreme Court has resulted in not only a setback to gay rights but also a betrayal of the liberal values that underpin equality and anti-discrimination law.

The recent Ashers Baking case is yet another brick in the wall of judicial reasoning that celebrates state neutrality – and as such it is no less than a betrayal of core liberal values. Equality laws are not and cannot be neutral. Within a liberal state, they must – and often do – reflect a content-based moral decision about the importance and weight of the principle of equality vis-à-vis other rights or interests. Equality laws will become meaningless, at least to some extent, if a liberal moral stand is not taken while applying them.

Notwithstanding important differences between the Ashers Baking case and previous, relevant cases (Bull, Ladele and McFarlane), they all share one crucial point. In all four cases the refusal to provide a service was based on an adverse judgment that the religious objector had made about gay people. In three of the four cases (Bull, Ladele and McFarlane), a service was denied to gay couples because they were gay. In the fourth case (Ashers Baking), a service was denied, not because of the identity of the customer, but because of his views (i.e. supporting gay marriage) – and because the service provider found these views morally repugnant.

According to the common view, applying equality or anti-discrimination laws does not require inquiring into the motives or the reasons for the refusal to provide a certain service – or more generally, the motives for discrimination (and this view was used in Ashers Baking to support the ruling – and see para 43). It would be a mistake, however, to completely ignore the reasons for refusing to provide a service in all cases – and there is nothing in the Equality Act that requires that these reasons be ignored.

If the refusal to provide a service discriminates against customers on the basis of their protected characteristics, the reasons for the refusal (i.e. whether the discriminatory act resulted from conscious decision, prejudice, antipathy, good faith, etc.) are normally irrelevant. Where the outcome of the refusal to provide a service is discriminatory, it is of little importance whether there was an intention to discriminate.

However, if the refusal to provide a service does not result from the costumer’s protected characteristics but rather it relies on discriminatory values that lead the service provider to make an adverse judgment about others (non-customers) because of their protected characteristics, this ‘discriminatory motive’ must be taken into account by the court. The relevant law in Northern Ireland states that A discriminates against B if A treats B less favourably on grounds of sexual orientation. There is no issue of remoteness here. The law does not specify that the sexual orientation must pertain to the potential customer. It simply makes it unlawful to discriminate against a person on grounds of sexual orientation. Therefore, Ashers Bakery discriminated against Mr Lee because it refused to make the cake he ordered ‘on grounds of sexual orientation’, that is, because the bakery owners judged gay people to be less worthy within the context of marriage. Section 13 of the Equality Act 2010 states that ‘A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others’. In the context of Ashers Baking: the bakery (A) discriminates against the customer (B) if, because of a protected characteristic (i.e. because of the view that gay people are not entitled to equal marriage rights), the bakery (A) treats its customers who support gay marriage (B) less favourably than they would treat others (those who do not support gay marriage). We see nothing in the language of the Equality Act 2010 – and its purpose – that prevents this suggested interpretation.

The fundamental question at this point would be: what is in fact the purpose of equality laws – including the NI regulations and the Equality Act 2010 – in their application to service providers? One possible answer would be that the purpose is to prevent service providers from discriminating against customers while relying on the customers’ protected characteristics. That would be the narrow, unsatisfactory purpose of the law. A second possible answer would be that the implied purpose of equality laws is also to prevent service providers from acting upon their discriminatory views when they provide services to the general public, thus preventing service providers from refusing to provide a service if the refusal relies on an adverse judgment about others (non-customers) because of their protected characteristics. That would be the broad purpose of the law – and it better reflects substantive liberal values. It upholds liberal values in the public sphere. In the private sphere – people are allowed to act on their discriminatory values. In the public sphere – they should not be allowed to act on these values while denying a service that is normally provided to others.

The Ashers Baking case throws the distinction between the two possible purposes of equality laws into sharp relief. Here, a service was denied not because of the identity of the customer but because of his views – supporting gay marriage. This is one of the reasons that makes Ashers Baking a difficult case for some. However, Ashers Baking is not that different from the other three cases mentioned above. It is indeed different in the non-important sense that the bakery’s owners were willing to provide their baking services to gay people (as opposed to Ms Ladele, Mr McFarlane and the Bulls). It is not different in the more important sense that a service was denied because the service provider believed that gay people should not enjoy the same rights as heterosexuals – and acted upon this belief in order to deny a service.

The broad purpose of equality laws may be rejected by anti-liberals and neutral liberals alike. A ‘pluralist’, ‘multi-culturalist’, content-neutral position has led some liberals to protect the right of the sellers in Ashers Baking to refuse to sell a ‘gay marriage’ cake. Their reasoning, within the special context of Ashers Baking, goes as follows: service providers should be allowed to act upon their values and thus to refuse to provide their services as long as the refusal does not rely on the customer’s protected characteristics but on the customer’s views. This is so even when the customer’s views, or more accurately the message that the customer wishes to convey, are within the boundaries of the law. This is a content-neutral position as it allows all service providers to refuse to provide their services on that ground and regardless of the moral soundness or legitimacy of their own values. This approach was clearly reflected in Ashers Baking.

It is misleading, however, to compare the Ashers Baking case to cases where service providers refuse to support views of any kind that contradict their deepest moral beliefs. The right comparison in this case is a refusal to sell a cake calling for or supporting inter-racial marriage. If a racist-white-owned bakery refuses to sell a cake to a white (or non-white) customer because the writing on the cake calls for inter-racial marriage, how would neutral liberals (and the Supreme Court) react? If they prohibit such a refusal they will have to substitute their neutrality with a more desirable, substantive version of liberalism. They will actually have to take a moral stand against certain values because of their content. If, however, they allow such a refusal, it will demonstrate the moral shortfall of neutral liberalism as a theory that in fact allows people to act on discriminatory, even racist values in the public sphere.

Our arguments here placed the Ashers Baking decision within the framework of equality laws – and in light of their purpose. The Ashers Baking decision, however, allowed freedom of expression to play a more central role – and in fact to decide the outcome of the case. In part 2 of this post we argue that the Court betrayed liberal values also within the context of freedom of expression.

Dr Yossi Nehushtan and Dr Stella Coyle, Keele University, School of Law

(Suggested citation: Y. Nehushtan and S. Coyle, ‘Ashers Baking (Part 1): The Supreme Court’s Betrayal of Liberalism and Equality’, U.K. Const. L. Blog (5th Nov. 2018) (available at https://ukconstitutionallaw.org/))

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1

Loyalist Lawyer on November 5, 2018 at 12:17 pm

Some academics just do not understand what a principled legal decision involves. They would rather displace the Court’s legal reasoning in favour of a prior subscription to a political ideology in which the latter must determine the resulting Judgment.
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Roger on November 5, 2018 at 1:30 pm

This is clearly a biased diatribe and not a serious analysis. The first mistake is in the very first sentence, there was no discrimination. It has been plain since the judgement even to the simplest person that it was the words that the service provider objected to, and was free to do so, not the customer. The service provider has rights too, and can choose when to provide or not, as long as the choice does not discriminate against a person on illegal grounds.

If this is what students at Keene are taught it’s no wonder they are exiting University with worthless degrees.

If we can’t rely on professional academics to understand and pass on straight forward court decisions then what can we rely on?
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  Hazel on November 19, 2018 at 1:52 pm
  
  *Keele University students are encouraged to engage with the law and its “straight forward court decisions” using a critical eye rather than passively accepting such a significant social institution as a static collection doctrinal rules. You can rely on good professional academics to encourage their students to think outside of the mainstream opinion.
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celticknotblog on November 5, 2018 at 2:10 pm

“A betrayal of the liberal values that underpin equality and anti-discrimination law”?

Nehushtan and Coyle are clear enough what they think a “liberal moral stand” would look like, to make this stand against State neutrality. I’d venture to suggest, be careful what you wish for…

Half a century ago, the Hart-Devlin debate http://www.jstor.org/stable/25115849, explicitly about whether the law should be underpinned by morality, was also framed with reference to religious morality and homosexuality. It was a given that those who were arguing for morality to underpin law were against a more liberal approach to homosexuality. And it was a move towards state neutrality – and away from the law taking a moral stand – that led to the decriminalisation of homosexual practice. A victory for Hart and state neutrality over Devlin and popular morality, if you will.

This blog suggests that the pendulum having swung to the neutral centre is not enough. It should keep the momentum towards a new morality. If you have read Nehushtan’s ‘Intolerant Religion in a Tolerant-Liberal Democracy’ Hart 2015, this will come as no surprise: intolerant religion does not have much place in a tolerant liberal democracy.

But “the liberal values that underpin equality and discrimination law” are not so hostile to religion. Freedom of thought, conscience and belief is one of our liberal human rights, alongside freedom from discrimination; religion and belief is a protected characteristic alongside sexual orientation. And it is really hard to square “compelled speech” with liberal values – at best, it is a limit on liberal values that may be justified in certain circumstances. I am led to conclude that a “liberal moral stand” can only arrive at the authors’ position if it disregards the current legal framework.

In the current febrile atmosphere in which intolerance towards otherness is gaining democratic traction around the world, expecting the courts to take a “moral” stance that accords with ones own liberal views is not just risky, it is downright dangerous. Liberal morality can be just as doctrinaire as religious doctrine. Where is judicial authority, if liberal morality and populist morality diverge? State neutrality has to be the right place for the pendulum to come to rest.
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Law and religion round-up – 11th November | Law & Religion UK on December 7, 2018 at 12:15 am

[…] Nehushtan and Stella Coyle, UK Constitutional Law Association: Ashers Baking (Part 1): The Supreme Court’s Betrayal of Liberalism and Equality: “on why the Supreme Court got it wrong”: Ashers Baking (Part 2): Do Homophobes and […]