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Clarity from the Supreme Court

On 10th October 2018 the Supreme Court, the highest UK court,  delivered its much anticipated judgement Lee v Ashers Baking Co Ltd [2018] UKSC 49.

The story has been well rehearsed – Ashers is a company owned by committed Christians, the McArthurs. Mr Lee was gay and worked for Queerspace. He was an existing customer of the bakery and in May 2014 wished to have the slogan “Support Gay Marriage” iced on a cake he ordered. This was refused and the charge of discrimination commenced, aided by the Equality Commission NI, which sought to test the legal boundaries of discrimination and confirm that Mr Lee had been discriminated against on the grounds of sexual orientation and/or  political opinion. Mr Lee succeeded in the County Court and NI Court of Appeal for reasons which were somewhat obscure to lawyer and layman alike.

The Supreme Court’s  judgement, however,  is a model of clarity. It held, regarding discrimination on the grounds of sexual orientation, that:

1. This was a case of “direct discrimination or nothing.”

2. Direct discrimination is by definition, treating people differently.

3. The correct comparator was other people, not different messages.

4. The circumstances of any comparison needed to be “the same or not materially different.”

5. Support for gay marriage was not a proxy for any particular sexual orientation, since anyone of any orientation could support it.

Lee v Ashers therefore differed from James v Eastleigh [1990] 2AC 751 – free swimming related to differing retirement age for men and women – and Preddy v Bull [2013] UKSC 73 (B&B accommodation only for heterosexual married couples). The complainants in these cases were adversely affected in law, because of a proxy for the protected characteristic.

6. There was no associative discrimination here – evidence of Ashers previously serving gay customers including Mr Lee himself and  employing gay staff, all put paid to that.

7. “In a nutshell, the objection was to the message and not to any particular person or persons.”

The Supreme Court made it abundantly clear that in this case, the cause of equality was done “…no favours to seek to extend it beyond its proper scope.”

The Supreme Court also examined discrimination on the grounds of political opinion. It accepted that

1. Support for gay marriage was a political opinion.

2. It pointed out that discrimination can arise irrespective of motive.

3. The legislation was designed to protect those who held an opinion from less favourable treatment, as compared with others who did not hold such an opinion.

4. It was clear that Ashers had previously served Mr Lee in other ways. Likewise they would have refused to ice the cake with this message, irrespective of the political opinion of the person asking for it. The Supreme Court took the view that it was not Mr Lee’s opinions or beliefs which resulted in the refusal of the order, rather:

“The objection was to being required to promote the message on the cake. The less favourable treatment was afforded to the message not the man.”

An interesting aspect of the judgement was how the Supreme Court dealt with the European Convention rights of the McArthur’s who owned Ashers, as opposed to the company itself. It concluded that in order to uphold the qualified ECHR rights of the McArthurs under Article 9 (freedom of thought, conscience and religion) and Article 10 (freedom of expression), the company should not be found liable. This differed from saying that the company had Convention rights.

Rather, to ensure that the McArthurs were not obliged to supply a cake iced with a message with which they profoundly disagreed or indeed be compelled to provide goods facilities or services expressing  a message with which they disagreed, unless justification was shown, the Convention rights could be invoked to protect the McArthurs, since to do otherwise would negate their Convention rights.

IMPLICATIONS

Significantly the Supreme Court was unanimous in reaching its decision. No dissenting voices confused the issue. Individuals are protected from compelled speech whether in icing, print, or orally. The groupthink mentality has been curtailed at least in the context of offering goods, facilities, and services.

Whether this is a victory for religious or political freedom has already been widely debated. However most commentators agree that the Supreme Court has stood up for freedom of expression, something which unites Baroness Hale, Peter Tatchell and no doubt, supporters of Iona (NI), on a significant area of social policy.

Shortly after she issued the judgement in Preddy v Bull, Baroness Hale gave a lecture at Yale Law School on Religion and Sexual Orientation: the clash of equality rights. She examined the case law on the subject and dealt with criticisms from the Archbishop of Canterbury and the Attorney General of Northern  Ireland on how  equality law had developed, particularly as it appeared increasingly to sideline religious belief or indeed fail to understand or show sensitivity to it.

Baroness Hale defended the role of the courts by explaining that the Law Commission had dismissed calls to legislate against offending religious feelings. However, she noted in examining Canadian case-law, that provision had been made there for a “reasonable accommodation” defence in dealing with conflicts of rights. She also acknowledged that some Christians did feel a lack of respect for their beliefs and queried whether a more nuanced view would be better.

She concluded:

“I find it hard to believe that the hard line EU law approach to direct discrimination can be sustainable in the long run. But I am not sure how comfortable I would be with the sort of balancing exercise required by the Canadian approach.”

Perhaps in Lee v Ashers we can see the arrival of some much-needed nuance into the conflict between competing rights through the mechanism of freedom of expression.

Although the Ashers have been vindicated in this matter, there will undoubtedly be many more conflicts to come where rights will clash. Freedom of conscience in medical matters such as abortion and euthanasia is one which might benefit in part by this decision but I very much doubt if it will be the last word on conscientious objection.

MARY J LEWIS BL

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Canonisations of Bl Oscar Romero and Bl Paul VI

On Sunday 14th October Bl Oscar Romero and Bl Paul VI will be canonised in the Catholic Church. What this means is that whilst they are already considered blessed and thus subject to local veneration, they will now be venerated throughout the Church. Both of these saints were remarkable men in the 20th Century, and both showed heroic virtue in their own ways.

Pope Paul VI’s heroism is noted chiefly by his publication of Humanae Vitae which reiterated and re-affirmed the Church’s teaching on artificial contraception and human sexuality. Humanae Vitae was not well received in many quarters, and despite immense pressure, Pope Paul VI held out and defended the truth. This year marks the 50th anniversary of the encyclical and it is timely for us to reflect on it. The Iona Institute NI delivered a set of lectures earlier this year on Humanae Vitae and they can be found on our YouTube page here.

Oscar Romero exhibited his heroism in another, more traditional manner.

Romero was the archbishop of El Salvador and was critical of the violence and oppression of the time. He spoke out on behalf of the poor and sought to uphold the human rights of his flock. He was shot while celebrating Mass March 24, 1980 and he was beatified by Pope Francis May 23, 2015.

Bl Romero is often considered a socialist saint and a radical because of his advocacy for the poor at the time and his opposition to government forces of the right. This is an unfortunate designation as the Church does not work within the confines of left and right; rather the Church is focussed on the human person and the dignity of the person. Should that dignity be undermined by repressive capitalist regimes, the Church speaks out; should it be undermined by repressive socialist regimes, the Church likewise speaks out. Having the good of all human beings in her heart, the Church advocates for the rights and dignity of the individual and does not swing in favour of one group identity or the other. This at times will entail opposing the establishment at the time, as Pope Leo XIII writes in Quod Apostolici Muneris, the encyclical on socialism, n. 7: ‘…[I]f the will of legislators and princes shall have sanctioned or commanded anything repugnant to the divine or natural law, the dignity and duty of the Christian name, as well as the judgement of the Apostle, urge that “God is to be obeyed rather than man”’. This was Bl Romero’s heroism, having the will of God in his heart and the good of every human person as his motivation he expressed outrage at the treatment of the poor and downtrodden for which he died a martyr. He was a martyr of neither the left nor the right, but for the truth about the dignity of the human person which is at the heart of all Christian social engagement.

Both of these saints are a witness to us to stand firm in defence of the truth, and to resist pressures whether they be to our reputation to our life.

Dr Gaven Kerr

Press Releases

Press Release on Ashers Judgement

Today’s landmark supreme court case is a win for everyone

The Iona Institute NI welcomes the unanimous decision by the UK supreme court which today ruled that the McArthur family did not discriminate against a gay rights activist in politely refusing to ice a cake with the slogan ‘support gay marriage’.

According to Tracy Harkin, spokesperon for the Iona Institute NI, “This case pursued  by the equality commission which cost N.Ireland taxpayers £360,000, was  deliberately framed  as an LGBT rights issue”.

“As the judgement today  clearly  highlighted however, the  McArthurs’ objection was not to Mr Lee himself, but to being required to write a political slogan”.

“The McArthurs have maintained all along that they did not refuse to serve Mr Lee because he was gay or because he supported gay marriage.Their objection was to supply a cake iced with a message with which they profoundly disagreed”.

“The rights to freedom of thought, conscience, and religion are the hallmark of any genuinely  pluralist and democratic society.No one should ever be forced to express a political opinion they disagree with”.

“We hope this incredibly important ruling will not only send a clear message regarding the misuse of equality law but importantly help to protect against the spectre of compelled speech in N.I. and throughout the UK”.

Ends

For further info contact

Tracy Harkin

Office: 028 92 646861

Mobile: 07531149891

Email: ionainstituteni@gmail.com

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After Birth Abortion

In 2012 Alberto Giubilini and Francesca Minerva published a paper in the Journal of Medical Ethics arguing that given the same moral status or lack thereof between a foetus and a new born baby, the same conditions that would justify the killing of the foetus also justify the killing of the new born. Their argument is structured around what they take to be the fact that neither the new born nor the foetus is a person (a highly disputable assumption), in which case it is not subject to a moral right to life in which case the rights and interests of actual persons, such as the mother, people in society etc, ought to take priority. They consider the potentiality objection to the effect that both the foetus and the new born are potential persons and so should be afforded the rights that all persons have; they reject this objection arguing that no harm is done to a potential person by not allowing such an entity to develop into a person. They also reject the adoption objection to the effect that adoption would be a better option than abortion or after birth abortion since they do not believe that it is straightforwardly true that the mental health of the mother would be better in the adoption case than in the abortion/after birth abortion case; and if in this case the interests of what they take to be an actual person (the mother) should prevail, then after birth abortion should be a valid alternative to adoption.

After birth abortion is a real issue and not just an academic matter; this is because when abortions are carried out post-viability sometimes they are not successful and the doctor along with supporters of abortion are left with a conundrum. On the one hand the mother has approached the doctor for an abortion, and in the majority of cases what this entails is a termination of the pregnancy and the death of the child. But in cases where the abortion is unsuccessful, the pregnancy is only terminated but the child is not dead.

Given that the mother has requested an abortion, does this extend only to the termination of pregnancy or should it extend to the death of the child?

If one holds that an abortion is unsuccessful unless the child’s life is ended, then one is left with the uncomfortable conclusion that the infant born alive should have its life ended; and if one does not recognise the right to life of this infant then one cannot recognise the right to life of any other infant. Hence Giubilini and Minerva’s conclusion follows and abortion, on this view, can be justifiably extended post-birth.

On the other hand, if one holds that in requesting an abortion a termination of pregnancy is sufficient but not termination of life (presumably because the infant born as a result of a failed abortion has a right to life), then one can query why the infant has a right to life only after being born but not whilst in utero. Indeed, the birth of the child is a rather arbitrary limit on the right to life such that an infant born alive after an unsuccessful abortion is no different from the same child in utero just prior to the abortion.

All of this goes to highlight a central feature of Giubilini and Minerva’s argument, and this is that if the right to life is only extended to individuals of a certain maturity or a gestational limit, then any limit to that right is arbitrary and the goal posts can be moved from 12 weeks to 26 week to full term to after birth and beyond. Indeed, once the limitation to the right to life comes to depend on some arbitrary point, the being in question ceases to have any right to life, but merely enjoys the privilege and benignity of those in power over him or her. In reality, the only limit to the right to life is not being the kind of thing subject to such a right. So, human beings are the kinds of things subject to a right to life, and so the limit on that right is that of not being a human. But this entails that the right to life cannot be based on any gestational limit or beyond, in which case the unborn child has as much a right to life as the newborn and beyond.

Dr Gaven Kerr