The Chicago Tribune carried the following report recently, and something in it strikes me as significant.
"A Colorado bakery owner illegally discriminated against a gay couple when he refused to bake a wedding cake for the pair last year because of his Christian religious beliefs, a judge ruled on Friday.
Administrative Law Judge Robert Spencer ordered Jack Phillips, owner of Masterpiece Cakeshop in suburban Denver, to accommodate sex-couples or face fines and other possible penalties.
“At first blush, it may seem reasonable that a private business should be able to refuse service to anyone it chooses,” Spencer wrote in his 13-page ruling.
“This view, however, fails to take into account the cost to society and the hurt caused to persons who are denied service simply because of who they are.”
The case involves Charlie Craig and David Mullins, who said Phillips refused to bake a wedding for their wedding celebration when they went to his shop in 2012. The couple was wed in Massachusetts, one of 16 U.S. states that have legalized same-sex marriage, but wanted to have a celebration of their nuptials in Colorado.
Colorado allows civil unions for same-sex couples, but defines marriage as between one man and one woman. Phillips refused to bake the cake, saying his Christian beliefs prevented him from doing so.
The American Civil Liberties Union filed a complaint with the Colorado Civil Rights Division, which ruled that Phillips had violated a state law barring discrimination at public accommodations based on race, gender or sexual orientation. On Friday, Spencer upheld the commission’s findings."
I am fascinated by law and, in another time and space and given the choice of destiny, I might have chosen some branch of the law to pursue as a career. I would do this because I believe properly structured laws provide the essential foundation of society. I may disagree with various views and opinions but they are just that; they remain ideas which I might support or reject but it is laws that require me to comply. If I do not like them while I have to obey, I do have the right to press my representatives for a change in the law that troubles me.
But let me go back to this ruling in the States. Bearing in mind I am not a lawyer, nor am I American and I do not have any qualifications to raise any legal points on this, it still troubles me.
I do not and will not enter into any debate about gay marriage. If a government passes a law we must assume it has been properly debated (though there is some view that parliament is guilty at times of making laws that are ill-considered, knee-jerk twitches to some current fad) and we trust it will be applied equally to all of society within the framework of the legislation. We know it's not, but that is another issue to be explored another time. The system we have is one of law and as such gay marriage has, in the UK, passed into law. Nothing more to say about that.
However this is about Colorado and has been made clear that while gay marriage is not lawful in that state, and the couple in question went to another state to be declared married, the United States –– being a collection of entities with their own laws under an agreed umbrella –– ensures the commonality that a marriage in one state is upheld in another. For example, you can't get married in say New Jersey and find that Arizona has unmarried you.
So these two men are married because that it is agreed across the fifty states. End of.
The ruling though isn't about this; it is about a man refusing to make a cake.
Now I do not know why these two men went to this baker and I do not know what words passed between them. I do not know if the married couple were 'making a statement' or whether they genuinely went into the shop and asked for a decorated cake because it was their nearest store. They may have requested something specific on the icing (what the Americans call frosting) which the baker objected to. They may have wanted it obvious in some way it was a celebratory cake for two men as men having a sexual union. No idea, and not relevant.
The baker refused to take the order, and while my understanding is that a shop-owner can refuse to serve a person (though this may be British law and agreed by the judge here) it always seems odd in a competitive economy that anyone turns down business. From my viewpoint, that's his prerogative.
At some point the baker, who has certain beliefs, made it clear he wouldn't make the cake for whatever reason. Had he said he could not fulfil the order for a reason allied to being too busy or not wanting any more commitments, one supposes the two men would have gone elsewhere. No disrespect to the baker but one cake may be much like any other. Ingredients apart, naturally.
This man however said no and probably cited his presumably firmly held beliefs to justify his action. I was not in the place at the time so I do not know what passed between the three and though this may have been fully explored in court, it's not within my knowledge. let us just say there was a disagreement.
Now I have been into shops and endured not very good service. Once or twice I have said something but most of the time I have left and simply resolved not to shop there again. I presume that this couple had the same option but they chose instead to file a legal complaint.
Once the legal process is begun, it has to be carried to a point where what might be called satisfaction by one or other party (or even both) is reached. After all, this did not presumably carry any act of physical intimidation, no violence took place, nor any theft or fraud resulting in financial loss. Unless this event has been badly misreported, those actual crimes did not figure in the court case. This was apparently about hurt feelings.
The judge said that. "Hurt caused to persons," he made clear. People had endured hurt feelings.
Now this is what troubles me: the law is responding to feelings and not to anything actual.
If I went into a shop and I was called a twat to my face (I suspect once on a holiday in North Wales the locals in the shop spoke about me in some derogatory terms in their language, but what the hell?) I might say something back about who was the bigger twat and leave. They wouldn't be getting my custom again and I am sure I would tell family and friends not to shop there if they could help it. But I am not sure I would think it worth my while to advertise I had 'hurt feelings' because, frankly, who cares?
I am not a delicate flower, nor am I emotionally upset when not liked by people I don't like. But here were two grown men who found it necessary to show their hurt and, worse than that, found a judge who put their feelings above all else. But then we don't have many judges it seems these days who say "get out of my court and stop wasting my time."
I am not sure here what the "cost to society" is either. The judge believed there was and maybe his ruling explained how and why. Fair enough: his job is to look at this case closely.
But if this is solely about hurt feelings then the law, that bedrock of society, is far more flimsy than I thought possible. On this basis we can all have 'hurt feelings' and nothing much would get done, I suspect, because we would all be too busy checking our feelings for possible hurt.
The judge did his job, but he did in my opinion do it poorly. But then, I wasn't there so I can't really say. All I can say is my feelings for the solidity and reliability of law have been hurt.
Very badly hurt, but I am not complaining.
No comments:
Post a Comment