Thursday, 21 May 2015

Specific or Generic Cake

There has been much commentary on the Gareth Lee v Ashers Bakery law case, some links are provided on the TA website to which may be added Martin Salter's reflections on cake, conscience and commerce. Not having read all of these but a number, I am still not persuaded by the first part of the judgement claiming that the customer was (indirectly) discriminated against on the grounds of sexual orientation. Evidence for (direct) discrimination on the grounds of political belief, as argued in the second part, seems to me much stronger.

One point of the controversy deserves maybe more attention that it has received. It is the question what sort of product this cake is. The managers of the bakery considered it a vehicle for a political slogan with which they would be implicated by making the cake. That the cake expresses a political conviction can be granted but the Judge rightly observed that no consideration seems to have been given to alternatives which could have created the necessary distance between the bakery and the political conviction. While not mentioned in the judgement, use of neutral packaging might have been sufficient to prevent any association of the bakery with this political view.

The Judge seemed more inclined to consider the product just a cake, one in the generic category "cake with graphics and writing on it". To deny such a cake to one customer but not another is unlawful discrimination. This makes sense to me. If baguettes are sold to some customers but not to others we have a problem.

So the question really is whether one cake with writing on it is just like any other generic cake or whether a cake with the slogan "support equal marriage" on it is a specific cake, one which had never been sold before to any customer and which the bakery does not wish to make for Gareth Lee or indeed for any other customer under the sun. I do not think the answer to this question is obvious; I am surprised that apparently it has not been explored explicilty.

The situation would be similar, if a bakery offered "wedding cakes" with a groom and a bride figure on the top of the cake, saying this is our "wedding cake" - take it or leave it (or, if you are a gay couple hitching up, club together with a lesbian couple, buy two cakes and change the figures.)

A related question may be weather a bakery would be free to provide "baptism cakes" but not "bar mitzvah cakes" or "bar mitzvah cakes" but not "bat mitzvah cakes", or whether a bakery that offered Ramadan-themed cakes would be obliged to provide "baptism cakes" as well.

It is a fine line between the freedom of a baker to offer the products they like and the right of customers to buy whatever another customer has the right to buy and the line goes through the specifci/generic distinction, as far as I can see.

If Gareth Lee had come into the shop, saying I'd like this cake over there for an anti-homophobia event with my gay friends at QueerSpace and if he had been unable to purchase a cake, it would have been a clear case of illegal discrimination. The fact that a cake with a particular design had to be specifically produced prompts the question here.

Tuesday, 19 May 2015

Discrimination without Motive

The full transcript of the County Court judgement in the case Gareth Lee v Ashers Bakery illuminates an aspect of the Judge's reasoning which had eluded me when I reflected on the summary statement in my previous post.

The defendants argued that they did not discriminate against Gareth Lee because of his sexual orientation or political beliefs by pointing out that

  • regardless of his sexual orientation or political beliefs they would have served Gareth Lee if he had ordered the cake without the message
  • they would have refused to fulfill the order for a "Support Gay Marriage" cake, even if the order had been made by "a heterosexual customer".
The Judge did not consdier these fair comparisons "for the reason that it oversimplifies the enquiry" in that it does not take sufficiently into account that discrimination "may be subtle, insidiuous or hidden," even to the discriminator.

Asking for the grounds, the why of discrimination is ambiguous. The question may be about "what caused the treatment in question" or about what was "its motive and purpose." Citing an earlier case, the Judge observes that "the former is important, the latter is not." 

In other words, the question is not whether the bakers were and are happy to serve people of a particular "sexual orientation" or people holding particular political beliefs - we may grant that they are entirely happy to do so - but whether people like Gareth Lee are given unfavourable treatment. 

The comparison must therefore be between a heterosexual customer ordering a "Support Marriage" cake and a homosexual customer ordering a "Support Gay Marriage" cake. The former gets served, the latter does not. This constitutes discrimination on the grounds of sexual orientation.

The Judge then cites from Bull and another v Hall and another [2013] UKSC 73
"[37] To permit someone to discriminate on the ground that he did not believe that persons of homosexual orientation should be treated equally with persons of heterosexual orientation would be to create a class of people who were exempt from the discrimination legislation. We would not normally allow people to behave in a way which the law prohibits because they disagree with the law. But to allow discrimination against persons of homosexual orientation (or indeed heterosexual orientation) because of a belief, however sincerely held, and however based on the biblical text, would be to do just that."
The relevance of this is not immediately clear to me. Does this imply and allege that the people at Ashers Bakery do in fact "not believe that persons of homosexual orientation should be treated equally with persons of heterosexual orientation"? Up to this point, I thought the argument was that the claim that the bakers do not hold such a belief was granted but declared irrelevant because in spite of their best intentions "gay customers" (who can be assumed to be in favour of "gay marriage" and willing to promote this with cakes?) are in fact disadvantaged over "heterosexual customers" (who may be presumed to order cakes which say "Support Marriage"?) and hence indirectly discriminated against.

PS: In the second part the QC for the Plaintiff claims that it is possible to discriminate against someone on the grounds of their religious belief or political opinion even without knowing what these are. The Judge rejected the Defendant's claim that they did not know the customer's political opinion but agreed that even if this had been the case, the refusal to bake a cake with the message "Support Gay Marriage" would still have been a case of discrimination on the grounds of politic belief.

Ashers Bakery

I am not a legal expert nor the son of a legal expert. These notes are merely by way of digesting the judgement that the court delivered in the Ashers Bakery case, based on the published summary.
The defendants are not a religious organisation; they are conduction a business for profit notwithstanding their genuine religious beliefs and in accordance with Regulations 16(2) are not therefore exempted by the Regulations.
To me this opening gambit sounds somewhat prejudicial because it suggests that the oweners or managers of Ashers Bakery claimed exemption from anti-discrimination law which I am pretty sure they did not. (Reading the full statement it makes more sense, as it is in effect a comment on the decision by the law-makers not to include a conscience clause for businesses.)

Judge Brownlie agreed with "the plaintiff's submission that same-sex marriage is or should be regarded as a union between persons having a sexual orientation" which I read as implying that those who enter into a "same-sex marriage" should be considered to have a "same-sex orientation" although I am not sure where this leaves bisexuals and others. More importantly, Judge Brownlie also agreed that "if a person refused to provide a service on that ground then they were discriminating on grounds of sexual orientation."

This has a certain logic but is it relevant? No-one claims that this business transaction fell through because the customer is in a same-sex marriage (we don't know that he is) and the managers of the Bakery repeatedly stressed that they serve all customers without discrimination.

Judge Brownlie appears to grant that the managers did not actually know that the customer was gay. But they had "the knowledge or perception" that Gareth Lee either is gay or at least "associated with others who are gay." With this the Judge appears to insinuate that the Bakery discriminates against customers who associate with gays which would be remarkable.

The Judge explains that
the defendants must have known that the plaintiff supported gay marriage and/or associated with others who supported gay marriage as this was a cake for a special event the plaintiff was attending
I would have thought that the message "Support Gay Marriage" which was to be put on the cake would have given the game away without any knowlegde of the event for which the cake was requested. But Judge Brownlie recognises that supporters of "gay marriage" are not necessarily gay and hence settles for the lesser claim that supporters of "gay marriage" can be presumed to associate with gays. In addition, she concludes that Karen McArthur, who served Gareth Lee, knew that "the plaintiff was a member of a small volunteer group; he wanted his own graphics on the cake" etc. In other words, the customer was thought to be in agreement with the message he wanted to have put on the cake.

Fair enough, but what exactly is the relevance of that? Does the Judge want to argue that the cake was refused not so much for the message it was intended to bear but because the customer was thought to agree with that message? Indeed, this seems to be where this is going. The argument at this point appears to be that the Bakery refused to bake this cake not because they could not support the political message the cake was to convey but because the manager "must either consciously or unconsciously have had the knowledge or perception that the plaintiff was gay and/or was associated with others who are gay."

How so? The critical point, as far as the Judge is concerned, seems to be that "the graphics being lawful and not contrary to the terms and conditions of the company" cannot themselves be considerd the grounds for refusing the cake; the ground must therefore lie in the Bakery's perception of the customer. Hence the claim that the Bakery did not discriminate against a political belief only but against a customer and that on the grounds of his sexual orientation. On a first reading of the summary, the reasoning seems to me hostile and torturous.

That the refusal also constituted discrimination against a political belief can be shown more readily by making the fair assumption that the Bakery would have been happy to provide a cake that spells "support marriage". In refusing to add the word "gay" the Bakery was restricting Gareth's Lee freedom to manifest his beliefs. What the defendants were asked to do may put limits on the manifestation of their own religious beliefs but this is necessary to protect "the rights and freedoms of the plaintiff...To do otherwise would be to allow a religious belief to dictate what the law is."
Judge Brownlie held that what the defendants were asked to do did not require them to support, promote or endorse any viewpoint.
The defendants are welcome to their religious beliefs but must not "manifest them in the commercial sphere if it is contrary to the rights of others." To use an analogy I have employed earlier, bakers are printers, not publishers. A publisher may refuse to promote books of a certain political or ideological bent but a printer presumably is not permitted to refuse business on the grounds that they do not want to promote what is being printed.

The judgement has no direct application to charities. It concerns the commercial sphere and the rights of customers on providers. The decision implies that the conscience of providers must not interfere with the freedom of customers. The second part of the judgement is therefore arguably not so much a victory of "gay rights" over "religious rights" but of consumer rights over any other considerations. The owners and managers of Ashers Bakery are free to commission a Hindu printer for a booklet that proclaims that "Jesus Christ is Lord!" and may request a flower arrangement which spells "only mixed-sex marriages are genuine marriages" from a florist who happens to be a member of QueerSpace.

PS: The full statement by the Court is now also available

The Cruelty of Denying the Trinity

The exposition of the doctrine of the Trinity in The Cruelty of Heresy: An Affirmation of Christian Orthodoxy (New York: Morehouse Publishing, 1994) begins with this observation: “The Christian teaching regarding the doctrine of the Trinity should not be as daunting and intimidating as many have made it appear…Christians can learn more about the Trinity without comprehending its mystery.” C. FitzSimon Allison observes that it is important to note to which problem or question the doctrine of the Trinity is the answer.
The problem is called “the one and the many.” It is not unique to Christianity. Everyone, everywhere and always, has had to struggle with this problem…simple solutions to the one and the many sacrifice the diversity and individuality of the many for an imposed and tyrannical unity of the one, or sacrifice the unity (family, nation, business, club, or church) for the sake of the pluralism and diversity of the many.
The author does recognise later on that the Trinity is not merely an answer to a philosophical question but also, maybe we should say first of all, to the way God has revealed himself.
The crucial question is not “Is there a God?” but “What kind of God do we have?” The faithful Christian answer is: the God and Father of our Lord Jesus Christ whom we know by the Holy Spirit.
        Thus, the Trinity is essentially God’s name: God the Father, God the Son, and God the Holy Spirit, one God…As it is clear that the New Testament teaches nothing of three gods, it is equally clear that there are significant distinctions between Father, Jesus Christ, and the Holy Spirit. They are distinct, they are related, and they are one. How can this be so?
In other words, God’s witness about himself demands that we think of God as tri-une and this leads to a doctrine which presents us also with an answer to the problem of “the one and the many” – an answer that claims that neither disunity nor uniformity has the (first or) last word. “The teaching concerning the Trinity does not proceed from philosophical concerns but from the saving experiences of God’s action as recorded in scripture.” 

The different ways in which this teaching has been denied or betrayed amount to stressing the unity at the expense of the distinctiveness. Most commonly the three-in-one paradox was resolved by merging the “three” as mere temporary modes into the “one.”
“Father, Son and Holy Spirit, One God” is simply explained by them as the Father temporarily manifesting himself as the Son and at other times as the Holy Spirit. It is like one person being a spouse, mother, and insurance executive. One objection was noticed immediately….If it were the Father who was manifest as Jesus, then…it was in fact the Father who was crucified.
Because a person can take any number of roles, not merely three, an analogy which may better illustrate this heresy is the appearance of H2O as ice, water, and steam (although children who have not yet been cured of their curiosity by education may wonder where snow fits in here).

A second, and to my mind even more serious because inescapable, objection is that such teaching pretty much excludes serious reflection on the interrelationships of the three. If this teaching had won the day, we could think of Jesus Christ only as a temporary manifestation of God, a role he played for a while, rather than the eternal image of God.
If this were so, you or I may be so unlucky as to reach that judgment seat on a day that God has a headache and is playing a very different role from the one we’ve seen in Christ….
        To believe in a god whose action in Christ is not his everlasting divine nature is to be bereft of any final confidence that God is the same as God’s self-revelation in Christ.
“If God is known only in modes or roles…then we cannot know God or be known by God, on the deepest levels” but we would know that he is not Love because prior to the creation of the universe there would have been no love between persons.

Friday, 15 May 2015

Human Rights Law and Religion

I do not follow the BBC series The Big Questions. I don't think I have seen an episode before but the 10 May 2015 episode came recommended. It asked: "Has human rights' law achieved more for humankind than religion?" (The programme description puts "law" in the plural.)

The discussion was pretty pathetic - a lot more shouting than logic; watching it felt like a waste of time. The question is not well put. What is "religion"? Is it the sum of all "religions"? What would count as "a religion" in this broad sweep? Is belief in some sort of deity required? If yes, how do we think about Buddhism? If not, does the belief that every human being (excepting the unborn, usually) has human rights make you a religious person?

Even if one knew what "religion" was, how would one measure what it has achieved? By what standard? We cannot run experiments on societies with and without "religion". Peter Tatchell maybe sought a way through by distinguishing between "religious people" who may be good or bad, just like non-religious people, and "religious establishments" which, it seems, have always been bad - at least for human rights. To point out that some religious leaders have led governments that promoted justice and peace and that the record of atheist leaders can hardly be said to be inspiring would not wash with Peter Thatchell. "Hitler? Stalin? Mao? It wasn't their atheism that did it" would be the answer. But would it not be at least worth exploring how and to what extent particular religions have promoted oppression and how and to what extent they have been a restraint on oppression? Yes, "atheism" did not tell Hitler or Stalin what to do but was their lack of religion in any way related to a lack of restraint? Yes, "atheism" did not tell the Chinese to adopt single-child policies and to prefer baby boys to girls to the extent of murder but did the freedom from the shackles of religion promote gender equality in China?

The programme's question invites a comparison, albeit not a very sensible one because "religion" and legislation are rather different things. Here the rhetorical question asked by one of the participants along the lines of "Has Starbucks done more for humanity than coffee?" makes a fair point. But at least it should be comparatively easy to establish what human rights legislation has achieved.

There was surprisingly little attempt to establish even this. Iran was held up as a (bad) example for what "religion" does to deny people their human rights. This looks promising because it seems possible to link specific violations of human rights with particular interpretations of Islam and because one can compare the cultural situation before and after the revolution to get a broader perspective on the difference made by giving religion a greater role in the political life of a nation. But to move this forward it would also be helpful to ask specifically, "What has human rights legislation achieved for the people of Iran?"

The question could be put more pointedly. It was taken for granted by several participants that "equal marriage" is a human right. It was also allowed that if the question of "equal marriage" were put to a referendum in Afghanistan, the answer would be a fairly unequivocal "No." But, as Andrew Copson in answer to that question explained, "human rights guarantees [!] that even if 99% of the society voted that you should be tortured, you're not going to be tortured [!] because the rest of the world, if they are watching and available...are watching out for your rights." How does this work in practice? Does the CEO of the British Humanist Association believe that the UK has a moral obligation to invade Afghanistan and occupy it again until torture has been ended and marriage no longer requires a mix of sexes?

If it is not enough to ask what the aims of a religion are, if we also have to ask what a religion has actually achieved, the same goes for human rights law. Pointing this out is not meant to suggest that human rights legislation is merely an ideal - fcar from it. I believe that legislation can play an important role in securing people their human rights but arguably on its own it is not enough. There needs to be a willingness to grant and defend human rights in actual practice. Laws and declarations need to be internalised and/or defended by force.

For many the question whether on balance "religion" proves to be more of a help with this than a hindrance is critical here and this was probably the question behind the question, given that no thought was given to what "religion" has "achieved" in terms other than securing the human rights of individuals. Much was made of the potential for "religion" to differentiate between an in-group and outsiders with the latter being treated badly. But no-one wondered how this relates more broadly to the question of how we nurture community cohesion and identity without encouraging such arrogance. Securing the human rights of individuals cannot really happen without communities who share a common interpretation of human rights and commit to watch out for each other's rights.

If the practical effect of human rights legislation was barely addressed, neither was its foundation properly explored. Claims and counter-claims as to whether the concept of human rights arose (uniquely) within Judeo-Christian cultures are only a very small part of the discussion that needs to be had here. Andrew Copson seemed to defend the fact that "human rights" are a cultural construct as an advantage but towards the end of the discussion rejected the premise of a question that queried our right to impose this cultural construct on others with a riposte which assumed that human rights are self-evident. True, "the person who is being tortured in a prison in Bangladesh for exercising their right to free expression" is not asking to be colonised, that person may well have a right sense oif their human rights being violated but this is only part of the picture. What about the torturers? Why do they not acknowledge the prisoner's human rights? Do they lack a proper concept of human rights or do they violate prisoners, knowing full well that they deny human rights? If the former, how do we explain human rights to them? If the latter, is force the only reply available to us to counter their use of force?

No, all in all it was a very superficial discussion.

A Profession

They were quite unable to understand each other on this subject. In Sir Lionel's view of the matter, a profession was--a profession. The word was understood well enough throughout the known world. It signified a calling by which a gentleman, not born to the inheritance of a gentleman's allowance of good things, might ingeniously obtain the same by some exercise of his abilities. The more of these good things that might be obtained, the better the profession; the easier the labour also, the better the profession; the less restriction that might be laid on a man in his pleasurable enjoyment of the world, the better the profession. This was Sir Lionel's view of a profession, and it must be acknowledged that, though his view was commonplace, it was also common sense; that he looked at the matter as a great many people look at it; and that his ideas were at any rate sufficiently intelligible. But George Bertram's view was different, and much less easy of explanation. He had an idea that in choosing a profession he should consider, not so much how he should get the means of spending his life, but how he should in fact spend it. He would have, in making this choice, to select the pursuit to which he would devote that amount of power and that amount of life which God should allot to him. Fathers and mothers, uncles and aunts, guardians and grandfathers, was not this a singular view for a young man to take in looking at such a subject?

From The Bertrams, a novel by Anthony Trollope

Monday, 11 May 2015

Compassion for the Poor through the State?

A friend recently asked, “Why do so many of my Christian friends assume that compassion for the poor must mean the state should play saviour?” I empathise with the questioner. I don’t like the idea of our lives becoming more and more state-controlled. But I am also uneasy about the assumptions that often underlie questions like this.

In all likelihood there is here, e.g., an implied dichotomy between compassion and justice which is not evident in the Bible where justice is about a right ordering of relationships which includes compassion.

But maybe the controlling assumption is the belief that there is such a thing as an ideal political system and that this ideal political system gives maximum role to individuals and maybe families. “I’m trying to love my neighbour. If everyone did it, the state wouldn't have to intervene.”

But when God said, "If your brother becomes poor and cannot maintain himself with you, you shall support him as though he were a stranger and a sojourner, and he shall live with you” (Leviticus 25:35), he did not add “make sure that this is not done in an orderly way which draws on the resources of the community.”

Let’s take a specific example. In a democracy, citizens may vote for a government that increases taxes in order to distribute a disability allowance – or they may vote for politicians who dismiss such a policy as “state interference.” If the citizens favoured politicians who support a disability allowance, they can then refer to this system of taxation and stipends either along the lines of “this is how we look after the more vulnerable members of our community” or in words which refer to “the state” and “handouts” and maybe even with a hint of “dependency culture,” as if there was less of a dependency culture in the good, old biblical days when the blind and lame sat alongside major roads and worship centres, begging for handouts from individuals.

Language about “the state” is not always innocent, especially where it reflects a dislike for the first person plural or for the idea of a polity doing more together than the bare essentials. If the complaint that “the state” does so much more than it used to do is made with little or no regard for the complexities of modern life, it makes about as much sense as the complaint about the greater number of rules and regulations in our world.

I suspect the Romans did not have aviation laws. If so, I believe the reason would be that there was not much aviation in those days. I also suspect that their laws about food additives were fewer than ours, likely because there were fewer ways of manipulating food in those days.

Those who vote for policies such as a disability living allowance do not thereby necessarily look to “the state” as the “saviour” of the disabled any more than those who prefer the proliferation of food banks to the provision of “government handouts” thereby worship food banks as the “saviour” of the poor. People on both sides are usually just saying, “we think this is the best way of organising our common life and concern for each other.”

Maybe it is true to say that “the state” (as an abstract entity) does not have compassion but compassion need not be something exercised by individuals only. It is possible for a community to be compassionate and even for a polity to institutionalise such compassion to some extent. Indeed, biblical law seems to be an example of this and it is assumed in the Scriptures that love is something that can be commanded. 

It is of course possible for individuals to feel resentful about taxes. They speak of “my money” which “the state” is taking away from me to give to "others". It could be argued that therefore such compassion has become a mere outward act (forced upon me by the wider community) rather than an inward reality. But laws reflect and express values and true leaders do not merely collect taxes and hand out allowances, they also nourish our identity and envisage a common future.

God certainly did not seem to have any qualms about embodying justice and compassion in law, enforced by the governing authorities. Nor will it do to dismiss this as law uniquely given for God’s people - other nations were meant to be awed by the wisdom of biblical statutes (Deuteronomy 4:6) and learn from God’s instruction (Isaiah 2:3).

Some may prefer the state to do less so that the church can do more. But if, as seems to be the case, the Christian response to pestilence was a factor in the growth of the church in the past, this should hardly lead us to wish away the NHS.

Some fear that organising our care for the poor and disadvantaged through the mechanism of government and taxation makes state oppression more likely but governments have proved perfectly able to be oppressive and tyrannical, while also being “small” when it comes to things like disability allowance and medical care.

Some seem to believe that administering retribution on wrongdoers is the only role given to governing authorities, as if Romans 13:4 provided an exhaustive list and we could firmly state that God wants governing authorities to spend tax money on the police and the military but not on roadwork and rubbish collection or care for the poor. 

PS: I might not agree with everything on but some fair points are made there.

Thursday, 7 May 2015

Church School Mathematics

Schools have policies on all sorts of things, including mathematics. A school in England may well use this extract from the NationalCurriculum to outline the purpose of studying mathematics:
Mathematics is a creative and highly interconnected discipline that has been developed over centuries, providing the solution to some of history’s most intriguing problems. It is essential to everyday life, critical to science, technology and engineering, and necessary for financial literacy and most forms of employment. A high-quality mathematics education therefore provides a foundation for understanding the world, the ability to reason mathematically, an appreciation of the beauty and power of mathematics, and a sense of enjoyment and curiosity about the subject.
But what about a Church of England school? Does studying mathematics in a Christian community look different? Vern Poythress with doctorates in Mathematics and New Testament would suggest so. The following is a proposed alternative, inspired by his blog post:
Mathematics involves (a) the world around us, (b) our minds, and (c) the general truths of mathematics. Mathematics works because these three realms are in harmony and they are in harmony because they all come from God. God specified the world by speaking it into existence. He specified our minds by making us in his image, so that we can imitate his own mind. He specified the truths of mathematics, because he himself is the truth. In learning mathematics we enjoy God’s glory and wisdom.
Mathematics is possible only because there is both unity and plurality. Mathematics is possible because God is God―one in three. We want our children to experience awe and wonder as they observe that mathematics makes sense and is reliable, to recognise that we depend on mathematics all the time and so to learn about the humility and joy of submission to truth. We want our children to delight in understanding the world through mathematics and get excited about how mathematics helps us find answers to problems.