Cake, conscience and morality in the public square
Whatever its eventual outcome in the courts, the Ashers case has already raised serious questions about the place of conscience in the public square, writes Professor Stephen Williams
AT the time of writing, the Ashers case is under appeal. Whatever its outcome, the decision of the Equality Commission to support legal action and the subsequent court judgment probably constitute a watershed in the life of Northern Ireland, especially when we take it in conjunction with wider social, legal and political developments featuring basic moral issues.
The Ashers case is not directly about gay marriage.
Yet both the case and the question of gay marriage have this in common: they have generated or revealed bewilderment in the Churches.
What should we believe and how should we make up our minds? We are not asking here about the boundaries of legitimate disagreement within Churches.
Rather, we are observing that many just do not know how to think about these things. Rightly or wrongly, some believe that they lack the mental capacity to grapple with these issues; it is a task for others. Others lack the will and interest to try.
Life is full of responsibilities and events, distractions and anxieties; setting aside time to reflect purposefully on social ethics has never really been on their agenda.
It is not surprising that there is widespread bewilderment about what to think, particularly when so many of those who do try to think also find themselves struggling to be clear.
I hope that this article will be of some help as we think about the question of conscience and the public sphere.
At least three things ought to be clear. Firstly, Ashers did not act in connection with sexual orientation, since gay marriage is a particular action, not a general orientation, and no-one was being deprived of the provision of goods and services on the grounds of sexual orientation.
Secondly, there are actively homosexual people who oppose gay marriage.
Thirdly, there are both homosexual and heterosexual people who are in favour of gay marriage but who defend Ashers.
These are simply matters of fact.
However, the religious past in Northern Ireland contributes to obscuring or marginalising these facts.
Discussion of the issues involved in the Ashers case is often riveted to both the terms and the legacy of the Good Friday Agreement against the background of a troubled religious history.
This leads us to another question: if Ashers is not really about sexual orientation, is it about specifically religious liberties?
Not necessarily. When DUP assembly member Paul Givan drafted for consultation his Northern Ireland Freedom of Conscience Amendment Bill, he made positive reference to conscientious objection to military service.
The reference is significant, because religion is not necessarily involved here: non-religious people have been conscientious objectors.
Some of us believe that an atheist firm of printers should have the right to refuse to print evangelistic religious tracts or that a firm of gay printers should have the right to refuse to publish literature which condemns homosexuality as evil.
Those who support Ashers' right on parallel grounds are not giving religion some extraordinary privilege.
What they are saying is that, in the domain of goods and services, religious and non-religious people alike should have the right to exercise conscience.
However, the religious past of Northern Ireland makes it all the harder to see the issue in this light.
Let me underline that we are dealing here with underlying questions and not with the legal circumstances of this case.
Nor am I addressing the big and wider question of the relation of the law to specifically religious liberties.
All I note is that the Ashers issue is certainly not about sexual orientation and arguably not best regarded as a question about specifically religious rights.
In that case, what is it about?
It is about the exercise of conscience in a democratic society.
We usually talk about 'exceptions' to or 'exemptions' from certain social regulations: normally, you cannot discriminate against people or groups in certain ways, but you are legally allowed to in some circumstances.
For example, provision is sometimes made for religious bodies and religious conscience.
However, the language of 'exception' or 'exemption' can convey a highly misleading impression, whether or not it is legally helpful.
It can misleadingly convey the idea that we are making a generous democratic concession.
Certain norms must govern public life but we will sometimes allow religious - or non-religious - bodies to operate in a different way, up to a point.
When we think like this, we risk starting at the wrong end.
From the very outset, when thinking about the provision of goods and services, we should incorporate into the very foundations of our thinking the belief that providing goods and services should always be in accordance with conscience.
Acting in accordance with conscience in public life should be a rule, not an exception.
It goes without saying that I am taking huge short-cuts here in respect of social, political and legal theory, but I hope that the basic point is clear.
When we associate the word 'conscience' with such words as 'exception' or 'exemption', we tend to relegate conscience to the private sphere and take it out of the mainstream of public life.
An illustration may help, although the analogy is meant to be limited.
Supposing I explained football to someone and said that no footballer is allowed to handle the ball when it is in play, but that there is an exception: the goalkeeper is allowed.
Is this some sort of concession? Scarcely. We would not be saying: "Normally, everyone should play by the rules, but we want to make a concession to goalkeepers so that they can be exempt from the rules and opt out of them under certain circumstances."
That would be a very odd way of talking. The right of the goalkeeper to handle the ball is just as much a rule of the game as is anything else.
Just so with the delivery of goods and services. The right to withhold goods and services on conscientious grounds should be thought of and treated as a rule and not a concession.
There is an obvious objection to this. It is a recipe for chaos. If anyone can cry, ‘Conscience’ about anything, then we shall surely live in a perpetual social logjam and flood our society with sexist, racist, homophobic, specieist, ageist and any number of other prejudices.
In response, we must say: yes, of course, the appeal to conscience is open to abuse.
No-one wants a situation in which you insist on the right to trade in the public square with a carte blanche for anyone to do anything that they want.
However, denial of the public exercise of conscience is equally open to abuse.
Regulating public life is always a matter of tightrope walking along a trajectory of checks and balances.
Let us remember what kind of exercise of conscience we are talking about in the case of Ashers.
Presumably, most of us agree that the question of gay marriage is important and not trivial.
It concerns the basics of social order. When the question of acting in accord with conscience arises in this connection, it reaches down to the depths of citizens' moral convictions.
People who believe in liberty, equality or democracy profess to do so for moral reasons. We value them as a matter of conscience.
We do not regard the moral opinion of a majority as the proper norm of public life; if the majority is racist or homophobic, we do not justify legislation on that basis.
Democracy is supposed to protect minorities against the tyranny of a majority. Complexities and conflicts, clashing rights and compromise are par for the course.
But if we uphold democracy as a matter of moral principle, because it promotes human dignity, we enter very dangerous waters if we begin to deprive citizens of the right to exercise moral principles in the public sphere.
When the moral opinion of some people in favour of gay marriage acts as a constraint on the contrary moral judgment of others, we are getting into deep trouble.
:: A version of this article first appeared in the Presbyterian Herald. Stephen Williams is professor of systematic theology at Union Theological College in Belfast.