Introduction
Similar to other theories like liberalism and Marxism, Feminism is also diverse and varied. Liberal ideas are divided into classical liberalism and neo-liberalism; Marxism is also divided in the same manner. However, feminism is more diverse and varied into different schools of thought, such as legal feminism, radical feminism, psychoanalytic feminism, and Marxist feminism. Despite all these variations, legal and radical feminism has been used to explain, criticise, and justify various issues surrounding women. In this regard, the subsequent section would assess the applicability and interpretation of liberal and radical feminism in different practical situations.
As much as feminism is diverse and varied, various underlying principles underpin all these variations of feminism. The primary underlying principle is that all interpretations of feminism assess women's experiences in gender subordination, the underlying root of women's oppression, perpetuating gender inequality, and giving different solutions to the existing gender inequalities. A legal feminist tenet that women's unequal access to economic, social, and political institutions leads to women's subordination. To mitigate this gap, women should access equal legal rights and participation in other spheres, such as the labour market, education, and politics. On the other hand, radical feminism argues that women's oppression is a result of their sexuality. These theorists state that women are socially controlled through religion and medicine, which portrays women as inferior individuals subjected to violence and objectification. For a radical feminist, sexism is among the hoariest and most pervasive types of oppression; they state that eradicating patriarchy and compulsory heterosexuality are vital in reducing gender oppression. The fact that radical feminism is against compulsory heterosexuality gives it some similarity with other theories that support same-sex relationships. In fact, in some cases, radical feminism has been used to justify homosexuality and explain the essence of gay and lesbian rights. Lee v Asher Baking Co Ltd is among the issues that have drawn the attention of both legal and radical feminism to advocate for homosexual rights, as discussed in the subsequent sections.
A Brief Overview of the Case
The case is about a local baking business, Ashers Bakery, which rejected an order from Mr. Lee, a gay man, for a piece of cake embedded with the phrase "Support Gay Marriage." In return, Lee sued the business for discriminating against him based on his sexual orientation. On the defence side, the McArthur family, who owned the Ashers Bakery business, stated that they were staunch Christians who believed in biblical teachings that the only legitimate form of sexual expression is a heterosexual relationship between a marriage relationship man and a woman. As people of faith, they sought to conduct their business in accordance with Christian beliefs but did advertise such messages anywhere on their marketing platforms. Contrarily, Lee was not aware of such restrictions since the company did not indicate that it had limitations to the type of orders it can process.
A few days after making the order, the company contacted Lee to inform him that it could not process the order because the company was established under Christian principles, and thus they would not make the case with a good conscience. According to Lee, this refusal discriminated against him based on his sexual orientation and went against the Equality Act and the Fair Employment and Treatment Act of 1998 enacted in Northern Ireland. The Northern Ireland District Court held that declining the order was a direct form of discrimination, and thus the company was to compensate Lee a sum of 500 Euros for discriminatory treatment. The business owners appealed the ruling, and the Court of Appeal held a similar verdict as the District Court. Dissatisfied by these decisions, the business moved further to the UK Supreme Court. The Supreme court argued that anti-discriminatory laws in Ireland could not be used to oblige the company to express messages contrary to their beliefs unless there is a rationality for such. The Supreme court held that the business had the right to decline offers from anyone, regardless of the client's ideas and orientation. Thus there was no sexual discrimination in this case.
Dimensions of this case
The case of Lee v Asher Baking Co Ltd presents both an ideological and legal paradox, in terms of which right is superior or should be given a priority at the other's expense. The case exposes the conflictual relationship between human rights and places legal institutions in a compromising situation where there have to compromise some rights at others' expense. The first conflict involves collective versus individual rights. According to the decision made by the UK Supreme court, the business was against the message that Mr. Lee wanted and not the person. The main issue in such a proclamation is knowing the boundaries of the message and the person. The Supreme Court's decision does not specify the line of discrimination between an ideology and a person. Usually, people present doctrines, so how can one discriminate against an ideology without extending the same to the owner of the ideology? While ideologically, this is practical, it is challenging to discriminate an ideology without extending the same to the person presenting the doctrine.
A comparison between Masterpiece Cakeshop Ltd v Colorado Civil Rights Commission and Lee v Asher Baking Co Ltd helps define discrimination against the message and the person. In the case of Lee v Asher Baking Co Ltd¸, it is clear that bakers were against the message engraved in the cake because it was contradicting with their religious beliefs. However, in the Masterpiece Cakeshop Ltd v Colorado Civil Rights Commission, there was no message to be conveyed apart from artistry which did not necessarily have to be symbolistic or portray an ideology. The owner of the Masterpiece Cakeshop declined the order simply because his clients were homosexuals.
The Court specified that business could decline to provide a service if that service needs them to express a message that the business owners disagree with and align with the freedom of expression, conscience, and religion. In specifying the issue, the Court states that a firm cannot decline an offer from someone because of their sexual orientation or support a divergent ideology if the proposal does not involve the business endorsing an ideology that the entity's owners disagree with. In this case, the right of an individual prevailed over collective rights, in the sense that the Court protected McArthur's freedom of religion, speech and thought, and the expense of collective rights that protect minority groups from discrimination due to their beliefs.
Legal Feminists Argument
As stated before, legal feminist believes that the majority and dominant groups use social institutions such as religion, political institutions, and culture to subordinate the women and the minority. In this case, homosexuals are considered as the vulnerable minority that social institution oppresses. Gender roles in the current society are derived from subjugating sexual practices that appease men's desires. In heterosexual relationships, sex is equated to submission and domination of masculine desires, prevents women from social liberation, and conforms them to subordinated gender roles. Therefore, any woman or man that pursues sexual freedom that is different from the prevailing ideology of 'natural' sex is deemed as deviant and thus subjected to various forms of discrimination. Legal feminism advocates for laws that would advocate for the equal manifestation of both genders, like the Equality Act of 2010, and is against practices that reveal women subjugation such as pornographic content, and thus advocates for anti-pornography legislation. Therefore, for legal feminism, any social norms that tend to subjugate a group of people to a particular way of thinking, behaviour, and culture are deemed perverse, and there ought to be counter legislation that would ensure that such practices are forfeited. Therefore, according to legal feminists, the UK Supreme Court decision in Lee v Asher Baking Co Ltd would have been different regarding giving a verdict against the appellant. It can also mean that the legal feminist would have decided the case as the District Court. However, the rationale and explanation could have been different.
When the District Court argued that Lee was discriminated against based on his sexual orientation using the discriminatory act, legal feminists would have looked at the case based on the prevailing social norms and laws that protect citizens against the pervasive cultural or religious practices. As per the tenets of legal feminism, religious beliefs like the ones held by the MacArthur family subjugates both women and people with different sexual orientation to a lesser position in the society, detracting from the principles of equality. If the majority of citizens adopt a similar ideology, then it means that the society would be intolerant of other doctrines that are not in line with the popular idea. Such an organisation is not sustainable would collapse since people cannot accommodate each other, and at the same time, the rights of the minority would be hugely compromised with the justification of religious beliefs and the right to be protected from the implied speech.
To understand how the owners of Asher Baking Company's beliefs are pervasive and limit human freedom to a more considerable extent, Fineman wrote about her experiences, both as a feminist and a homosexual. He stated that he was under pressure from her friends and family members to fit into heterosexual norms in action and behaviour while growing up. Fineman reports that being male in a heterosexual dominated society, one is forced to like women, and even if he did not, he was supposed to act as a heterosexual man who wants to talk about sports, fancies aggression, and does not speak with a lisp among other traits. The reigning social ideology had already dictated her mode of conduct and preferences because she was born female. Fineman's account reveals social oppression and subjugation because of gender, yet UK laws protect people from such practices. The same dominant and oppressive heterosexual thought that Feinman complains about is reflected in Asher Baking Company owners' ideologies and beliefs. The fact that Mr. Lee was male, the bakers assumed that he was supposed to act and behave as per the dominant culture's dictates, which is being heterosexual. Considering that Mr. Lee wanted the phase "Support Marriage between Man and Woman" (which represents the prevalent social belief), then there is a high probability that the baking company would have delivered the order. However, because Mr. Lee's message was against the dominant and oppressive ideology, the baking company declined the order.
From a legal feminist perspective, Asher bakers would have been liable for exposing Lee to harmful cultural practices that lead to discrimination, direct and indirect harm, and humiliation. According to the Anti-Social Behaviour, Crime and Policing Act 2014, an Anti-Social behaviour is defined as "conduct that has caused, or is likely to cause, harassment, alarm or distress to any person." Contrary to popular belief that Anti-social behaviour is conduct pursued by the minority, the Anti-Social Behaviour categorically places any behaviour that can cause alarm or distress to any person as anti-social behaviour.
