Yossi Nehushtan and Stella Coyle: Ashers Baking (Part 2): Do Homophobes and Racists have a Right Not to Manifest Liberal Messages?

At the heart of the recent Supreme Court’s decision in Ashers Baking lies the ruling that nobody should be forced to express a view in which they do not believe. The unfortunate implications of this content-neutral reasoning go far beyond the circumstances of this case. This reasoning will result in vindicating behaviours that are founded on anti-liberal values, thus undermining core liberal values.

If courts follow this reasoning they will have to rule that a bakery, for example, does not have to provide customers cakes with icing that says either ‘homosexuality is a sin’ or ‘support gay marriage’ if these views run against the deeply held belief of the bakery’s owners.

In many aspects, the statement ‘homosexuality is a sin’ is not different from ‘support gay marriage’. Both statements are legal; both contradict deeply held beliefs of others; and both reflect deeply held beliefs – religious or others. And yet, treating these statements or cases as equivalent has the effect of betraying core liberal values.

If equality defines the limits of freedom of religion – and freedom of expression (including the right not to manifest views to which one objects), then service providers should not be forced to assist a customer to convey a certain message only if (a) the message contradicts the service provider’s deeply held belief, or diminishes important aspects of the service provider’s identity or way of life; and (b) the refusal to convey the message does not rely on discriminatory, unjustly intolerant or morally repugnant values – or results from such values. Genuine liberalism does not countenance an ‘either/or’ here; the former condition only has meaning within a liberal framework if the latter condition is also met.

Within the framework of non-neutral liberalism, equality laws and freedom of expression, this is where the key difference between the above two statements lies. ‘Support gay marriage’ may contradict the deeply held beliefs of some religious people, but it does not convey discriminatory or morally repugnant values – and does not result from such values. It does not perceive religious people as less worthy, either as humans or as rights-holders, because of who they are. It does not contradict core values of liberalism. Those who object to assisting others in conveying the message ‘support gay marriage’ do so plainly because they are homophobic – at least within the context of the right to marriage. Homophobia is morally repugnant – or should be perceived as such in a liberal democracy. Therefore, and within the context of providing services to general public, holding these values cannot form a valid reason for prioritising the right not to manifest a belief to which one objects over the duty to provide a service to the general public.

The message ‘Homosexuality is a sin’, however, does not just contradict deeply held beliefs of some people. It conveys discriminatory values and it results from such values. It perceives gay people as less worthy, as human beings or rights-holders, simply because of who they are. Those who object to assisting others in conveying the message ‘homosexuality is a sin’ – do not rely on discriminatory or repugnant values while doing so. They in fact rely on liberal values. Therefore, and within the context of providing service to general public, holding these values does form a valid reason for prioritising the right not to manifest a message to which one objects over the duty to provide a service to the general public.

A few more examples which have been suggested by others may clarify this point – and the shortcomings of the Court’s reasoning in Ashers Baking. Spencer, for example, argued that a Catholic bakery should be allowed to refuse to sell a cake with a pro-abortion icing; a Muslim-owned bakery should be allowed to refuse to sell a cake proclaiming ‘Jesus is our Lord’; a secular owned bakery should be allowed to refuse to sell a cake calling for Sharia law; and a Christian-owned bakery should be allowed to refuse to sell a ‘gay marriage’ cake. These examples are misleading, because there is a crucial difference between the first three examples and the Ashers Baking case. Opposing abortions, Christianity or Sharia law may or may not be morally sound but it should be tolerated by the liberal state. A refusal to support, directly or indirectly, a world view that contradicts one’s deepest moral beliefs should normally be tolerated by the law, as long as these moral beliefs are morally legitimate. However, opposing gay marriage is not quite the same as opposing abortions, Christianity or Sharia law. The latter three are about views, ideologies and beliefs. Opposing other people’s views – and a refusal to assist in conveying them – should be tolerated or respected – and in any event allowed. The former, however, (opposing gay marriage) is about people’s identity. It is about perceiving other people as non-equal because of who they are. People may hold such views, but acting upon such views in the public sphere should normally not be allowed.

It is a truism that discriminating against a person because of their identity might be humiliating. What the Court in Ashers Baking failed to realise is that exercising the right not to manifest a message that runs against one’s belief – in a way that results in refusing to provide a service that would otherwise be provided – may be equally humiliating. And if that refusal relies on discriminatory, unjustly intolerant values, and is still sanctioned by the courts – it in fact means that the right of homophobes and racists not to assist others to manifest their liberal values in fact trumps the principle of equality and will normally be exercised at the expense of the right of vulnerable minorities to be protected from silencing and excluding practices.

In Ashers Baking, Lady Hale repeatedly stressed the distinction between discriminating against people because of who they are and discriminating against them because of their views. Lady Hale agreed that ‘it is deeply humiliating, and an affront to human dignity, to deny someone a service because of that person’s race, gender, disability, or sexual orientation’ (paragraph 35). But we wonder: isn’t it almost equally humiliating and an affront to human dignity to deny a gay person a service because the service provider makes an adverse judgment about gays as gays? Wasn’t the gay customer in Ashers Baking humiliated as a result of being denied a service because the service provider sees gay people as less worthy? Mr Lee certainly felt so: he said that the bakery’s refusal to bake the cake made him feel like a second-class citizen (Ashers Baking 2015, paragraph 11).

Equal rights and equal citizenship are based on the liberal principle that people are of equal worth. To refuse a service to a gay customer because of the view that gay people are not entitled to marry is as humiliating as refusing a service to a gay customer because they are gay. This also means that despite the Court’s constant denial, the fact that the customer in Ashers Baking was gay – was relevant after all. This, of course, does not mean that refusing to provide the cake to a non-gay customer should be allowed. It should be prohibited for the reasons mentioned above – and because service providers do not know and should not be allowed to inquire whether their customers are or are not gay.

The decision in Ashers has been welcomed by some as a victory for freedom of expression and as a means of protection for people who would otherwise be compelled to produce items with messages that contradicted their own deeply-held beliefs. However, the true winners here are anti-liberals. Taken to its extreme, the court’s reasoning in Ashers allows a racist baker to refuse selling a cake to both white and non-white customers if the writing on the cakes says ‘support inter-racial marriage’ or perhaps even ‘celebrate black history month’, if these statements contradict the seller’s racist views and if the seller would refuse selling these cakes to anyone and not just to non-white people.

The ruling in Ashers means that the freedom of expression of racist and homophobic service providers, for example, allows them to act on their racist and homophobic views in the public sphere, while denying customers a service if that service means assisting the customers conveying liberal values – and even when these customers are the direct target group of the racist or homophobic views of the service providers.

This is a glorious example of what may happen when neutral liberalism is applied by courts when a decision is made about the limits of rights – and balancing between rights. All too often, and in the Ashers Baking case as well, applying neutral liberalism within this context results in undermining liberalism itself and its core values.

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

(Suggested citation: Y. Nehushtan and S. Coyle, ‘Ashers Baking (Part 2): Do Homophobes and Racists have a Right Not to Manifest Liberal Messages?’, U.K. Const. L. Blog (6th Nov. 2018) (available at https://ukconstitutionallaw.org/))