How Rights Went Wrong: Why Our Obsession With Rights Is Tearing America Apart by Jamal Greene

Author:Jamal Greene [Greene, Jamal]
Language: eng
Format: epub, pdf
ISBN: 9781328518149
Google: EQbrDwAAQBAJ
Amazon: 1328518116
Publisher: HMH Books
Published: 2021-03-16T00:00:00+00:00

On Having One’s Cake and Eating It, Too

Courts can do better than this, and many do.

The United Kingdom’s highest court navigated its own cake case in 2018. Daniel and Amy McArthur run a thriving bakery, Ashers, in Belfast. The McArthurs are devout Christians, hence the name of the bakery, which derives from Genesis: “Bread from Asher shall be rich, And he shall yield royal dainties.” Gareth Lee, a volunteer for an LGBTQ rights organization called QueerSpace, decided in May 2014 to bring a cake to a party marking the end of Northern Ireland’s Anti–Homophobia and Transphobia Week. You can guess the rest. Using the company’s “Build-a-Cake” service, Lee placed an order for an Ashers cake to be iced with a picture of Sesame Street’s Bert and Ernie, the QueerSpace logo, and the words “Support Gay Marriage.” Amy McArthur took his order, but after some deliberation over the weekend, the McArthurs determined that making this cake would violate their religious conscience, and they refunded Lee’s money.

Lee sued, claiming that the McArthurs’ conduct violated his rights to freedom from discrimination on the basis of sexual orientation, political expression, and religion, guaranteed under various Northern Ireland laws and regulations. The bakers countered that if the legislation covered this transaction, it violated their own rights to freedom of expression and religion, guaranteed under the European Convention on Human Rights. It was, in other words, a conflict of rights. But instead of ratcheting up the case, deciding it based on the existential question of whether gays and lesbians should best Christendom, the UK high court looked to the facts.

Baroness Brenda Hale’s lead opinion for the Supreme Court of the United Kingdom contained no talk of Nazis or Babylonians or quinceañeras. Instead, Lady Hale carefully noted that the McArthurs’ objection was not to Lee “the man” but rather to what he wished to put on the cake. Lee’s own sexual orientation was not what doomed his cake, and there was no evidence that the bakery had ever discriminated against gay customers as such. The McArthurs’ refusal, Lady Hale said, was over “the message, not the messenger.”

To be sure, the case wasn’t quite as simple as this slogan suggests. Had a straight man asked for a cake with the message “Support Heterosexual Marriage,” the McArthurs would have baked it without incident. Was that the right comparison? The lower court judge thought it was. Sometimes the message is inseparable from the messenger, as may indeed have been the case in Masterpiece Cakeshop. Someone in the business of making wedding cakes who refuses to do so for same-sex weddings edges awfully close to simply refusing to serve customers who wish to marry someone of the same sex. Lady Hale discussed Masterpiece Cakeshop at some length and glommed on to just this difference:

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