During his recent visit to Poland, Cardinal Vincent Nichols spoke of the Church in a secular and multi-faith world needing “to reach out and construct a dialogue on arguments about society’s Common Good”. Wise counsel. That dialogue is currently not led by bishops, imams, rabbis and priests, religious leadership, but takes place in the adversarial context of the court room. By default it falls to the judiciary to shape these arguments while interpreting law and legislation. A good example is Lord Justice Singh’s recent ruling on the Cab-Rank policy of the Inner North London Senior Coroner for burials.
“What on its face looks like a general policy which applies to everyone equally may in fact have an unequal impact on a minority”, he pointed out. “In other words”, Lord Justice Singh continued, “to treat everyone in the same way is not necessarily to treat them equally. Uniformity is not the same thing as equality”.
His ruling in the High Court was the outcome of a dispute between the coroner, reacting to what she saw as bullying, and Muslim, Orthodox and Haredi Jewish communities. These communities sought burial in the shortest time possible, ideally within 24 hours, out of respect for the dead, k’vod hamet. Stamford Hill, in Hackney where I live is home for some 25,000 Haredi Jews. Muslims share this burial tradition and were delighted at the ruling. A third of the population of Tower Hamlets are Muslims of Bangladeshi origin, numbering some 82,000.
I first encountered the forensic legal style of Rabinder Singh in 2002 when, as a QC in Matrix Chambers, he was acting in the High Court for CND, challenging the legality of going to war with Iraq without a second UN resolution. In a public talk he demonstrated the way in which Chapter One of the UN Charter, “Purposes and Principles”, provided a key to interpreting the Articles on war and military intervention. It was a master-class in constructing reasoned advocacy. It had a compelling logic. He lost the case.
A week or so ago, he was deploying his insights on an important question of religious freedom and discrimination against religious minorities. His ruling is important, not simply because those grieving were particularly liable to experience additional distress from the Coroner’s insistence that they wait in line, but because it provides a simple, but often ignored, insight into equal rights. A religious identity can require accommodation: tolerance of occasional exceptions to a general rule, and sometimes special provisions, just as one based on sexual orientation (think of the legislation on civil partnerships). The simple fact is that everyone waiting to bury a loved one will be distressed by delay, but Muslims and Jews will also experience delay as a painful frustration of their religious duty.
But not all religious freedom cases can be dispatched so clearly and vigorously. It seems a big jump to move from the solemn context of accommodating different religious interpretations of respect for the dead, and the funeral needs of religious communities, to a bakery in Belfast and a dispute over a cake.
Judges of the Supreme Court are not in the habit of sitting in Northern Ireland. But the bakery dispute has passed up the court system and, because of the importance of the legal principles involved, and the complexity of devolution, demands this level of attention. The case pits a bakery with committed Christian owners against a campaigning gay minority. In 2014 the respondent, Mr. Gareth Lee, ordered a cake with the message “Support Gay Marriage” on it - gay marriage was unlawful in Northern Ireland. Mr Lee was at the time associated with QueerSpace, a Northern Ireland LGBT organisation; the cake was for an International Day against Homophobia.
Mr. Lee wanted to buy his cake from Ashers bakery, was refused, and claimed discrimination on grounds of sexual orientation under the 2006 Equality Act. He twice won his case in lower courts. The Supreme Court is now being asked to decide whether the lower courts’ decisions that Mr. Lee was discriminated against under the Act is correct. Or whether the appellant, a Christian baker, is within his rights to refuse to put words on a cake which contradict his own conscientiously held religious beliefs, whether his right to religious freedom permits a refusal to sell a cake carrying such a message.
Equality law aims to protect people from discrimination on grounds of sex, race, religion and sexual orientation. Its protection would, theoretically, apply to a Christian customer whose order to create a cake with “Reject Gay Marriage” on it was refused by a gay baker because they were Christian Two of the identity categories protected in the Act have come into conflict. Which prevails? The rights of the gay customer, i.e. sexual orientation, or the rights of the baker, religion? We won’t know the answer for many months.
Not being a lawyer, I am susceptible to simple ways of looking at such disputes. Do Lord Justice Singh’s words on “unequal impact” help? Is the human dignity of the gay litigant adversely affected by this particular refusal of service? It could be. It depends on whether the man or the message was being denied. But not remotely to the degree a gay couple might feel on being refused a double room in commercial accommodation, a similar recent case. The cake was essentially a campaign tool and the commercial transaction was to buy it for an event in County Down.
The words requested on the cake, the words of the respondent, are an unusual form of utterance. But the baker was being obliged to utter them, or risk a fine. Is being obliged to utter a slogan you are conscientiously and religiously opposed to on pain of civil liability, compelled speech or expression in legal terms, very distressing? I would have thought so.
Amongst its important functions, the law plays an important role in defining ethical behaviour both by the State and by individuals. By applying the law in actual cases, the judiciary today defines the legal and ethical demands of living in a multi-cultural and multi-religious society. In this situation there is a danger that campaigning organisations will use the judicial process for gaining publicity rather than clarifying complex legal issues, or, indeed, representing the position of their wider communities and leaders.
This becomes more serious when, beyond presenting generalities, religious leaders seem to have partially vacated the space and provide decreasing guidance in the public domain when ethical issues have a political dimension. Have there been pastoral letters on the application of Christian values to immigration occasioned by the Windrush scandal, in other words taking advantage of a time when the public might be paying attention to an ethical argument? Yet, the Church has an outstanding record on the matter.
Why does it take a thoughtful Judge to offer instructive pointers to thinking about problems arising from claims involving religious freedom. If Faith and Reason are, as Pope Benedict underlined, allies not enemies for Christians, where is the reasoning about the big contested issues of the day, immigration and religious freedom? And when the argument about gay marriage has been/is conducted largely as a conversation about human rights and human dignity why do bishops not engage on this ground? For example, by making the kind of basic distinctions about equality that Lord Singh makes and applying them.