Ashers Bakery Loses "Gay Cake" Discrimination Case

gay_cake_reuters-640x480In the spring of 2014 efforts to enact same-sex marriage legislation in the Northern Ireland Assembly suffered another setback. Undeterred, QueerSpace, a support group for the LGBT community in Northern Ireland, celebrated its 16th anniversary with an event pushing for reform of the law. Gareth Lee, a volunteer at QueerSpace, ordered a cake for the party bearing the slogan “Support Gay Marriage” from Ashers Bakery. When his order was subsequently rejected and his money returned on the basis that the message offended against the religious beliefs of the bakery owners, the McArthur family, these seemingly innocuous facts exploded into the “Gay Cake” case which has gripped public debate in Northern Ireland for the last year.

The controversy shows no signs of abating with today’s decision by the highly-experienced District Judge Isobel Brownlie that the refusal to make the cake did amount to direct discrimination on grounds of sexual orientation. Unsurprisingly the McArthur family have described themselves as ‘exhausted’ by events. Lee is likely equally drained, but has been much less willing to discuss his feelings about the case in the press. The disparity in coverage of the two parties has led to any number of myths growing up around the case which this article attempts to address.

The case didn’t involve “setting up” a small bakery known for the political beliefs of its owners. Ashers is a multi-outlet business with a workforce of over sixty which does not maintain an overtly religious affiliation in its stores. It just happened to be the most convenient bakery for Lee to use. Nor does Lee’s desire to protect his privacy, or the support his action has gained from the Equality Commission for Northern Ireland, indicate that the McArthur family are being persecuted by a shadowy agency of the state.

Ashers’ case has a superficial appeal which has been exploited by political parties in Northern Ireland which draw upon a religious support base (see the immediate reaction by the TUV’s Jim Allister that the decision marked ‘a dark day for justice and religious freedom in Northern Ireland’). People do not like to feel that they may be compelled to deal with others they would ordinarily choose not to engage with by virtue of legislation. This week’s marriage referendum mean that the decision has attracted considerable attention across the island.

But women, disabled people, gay people and certain racial and religious groups have long been subject to stigma and disadvantageous treatment by virtue of characteristics over which they have no control because of prejudices within sections of society. These specific characteristics are therefore protected to enable individuals to go about their day-to-day lives without facing obstacles that other people do not have to face. Legislation of the same character exists in the Republic of Ireland (the Equal Status Act 2000) and in other parts of the United Kingdom (the Equality Act 2010).

Lee just wanted to buy a cake for an event. He wanted to pay the same £36.50 Ashers would have charged anyone else in those circumstances. The graphic he wanted on his cake was not unlawful and didn’t violate any of Ashers’ terms and conditions. The bakery’s refusal left him feeling like ‘a second-class citizen’; it fundamentally undermined the idea that he could live his life as an equal member of the community in Northern Ireland. In these circumstances it should come as little surprise that Lee has not courted media attention. The case, at its root, is about the ability to do the banal and ordinary things in life without these activities becoming the subject of public opprobrium. Rather it was Ashers, in accepting and then refusing to fulfil the order, without making any efforts to get a third party to make the cake and thereby spare the consciences of the McArthur family, who dug in to their position. Victimhood, it seems, sells buns.

Yesterday’s judgment comes in two parts. The first is an admirably clear exposition on discrimination law relating to sexual orientation and its purposes (Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006). Ashers’ defence was that making a cake with a “Support Gay Marriage” message upon it could be construed as their supporting gay marriage. But simply because a printer produces signage for a political campaign this doesn’t imply any support for that campaign (as seen in this episode of Moone Boy). The issue for the Court when direct discrimination is claimed is whether the protected criteria (sexual orientation) was the basis of the unfavourable treatment. As there was clear evidence that purchasers were gay, or associated with gay people, and that this was Ashers’ reason for refusing trade, Judge Brownlie’s decision was an entirely straightforward application of law to the facts. This evidence cut through the need for extensive discussion of comparators which often feature in discrimination cases.

The second part of the decision is devoted to the 1998 legislation relating to fair treatment on the basis of political beliefs (the Fair Employment and Treatment (Northern Ireland) Order 1998). The relevant parts of this legislation are intended to protect expressions of political opinion in Northern Ireland and to prevent opposition to a political position being used as a basis for a business refusing to deal with an individual. This legislation is specific to Northern Ireland and is designed to tackle the long history of sectarian efforts to restrict political engagement, but can clearly encompass a campaign for legislative reform such as the introduction of same-sex marriage. Ashers’ contention (regarding the first head of the claim) that they refused to act in a way which could be construed as backing the campaign for gay marriage established that its managers appreciated that a political campaign was at issue. Again, the application of the law was therefore straightforward, as Judge Brownlie notes at paragraph 62 of her judgment:

They were contracted on a commercial basis to bake and ice a cake with entirely lawful graphics and to be paid for it. The Plaintiff was not seeking support or endorsement. Whilst the graphics were contrary to their genuinely held religious beliefs, the provisions of the 1998 Order allow for no exceptions in these circumstances.

Had Gareth Lee lost on this head of the claim, he would still have won the case. But it is this part of the judgment that has attracted the most adverse attention, with people drawing lurid analogies between the case and a black bakery owner being obliged to provide a cake supporting the KKK. Such a case, requiring an individual to provide a service in furtherance of hate speech would exceed the protections of political opinions provided in law. No one, as Judge Brownlie points out, is obliged to print out a message which would breach the criminal law.

In sum, this case is not a new development or a sudden judge-led extension of discrimination law in Northern Ireland. It marks a reasoned application of well-established legislation. The direct-discrimination element of the decision in the Ashers case cannot be distinguished to the UK Supreme Court’s 2013 decision in Bull (in which the Court found that Christian guest-house owners had discriminated against a same-sex couple in refusing them a double-bedded room).

Moreover, as Judge Brownlie takes pains to point out, this application of the law on direct discrimination in circumstances of refusal of a service because of the purchaser’s links to a gay cause were specifically envisaged by the Office of the First Minister and Deputy First Minister following the enactment of the 2006 Regulations. As the consultation response produced in 2008 by Ian Paisley and Martin McGuinness’ Office stated:

In respect of “Christian businesses” … the Government is firmly of the view that any person or organization which opens a business to the public … has to be prepared to accept the public as a whole no matter how that public is constituted.

It ill befits the DUP to plead ignorance to the reach of this legislation and to decry its impact upon Ashers, as they have done for the last year (whilst pushing for the introduction of a new “conscience clause” in discrimination legislation). If from Lee’s perspective the “Gay Cake” case (a description certain to leave future generations puzzling over the sexuality of baked goods) is about the ability to engage in ordinary activities without discrimination, for the McArthur family the judge’s overriding message should be that individuals remain under an obligation to abide by law even if they disagree with it. A conscience clause will not “address” such situations, it will simply lead to gay people facing circumstances in which they can be refused goods or services without warning.

The McArthurs’ efforts to cite reasons of conscience for refusing the law could be styled as a form of civil disobedience, but doing so might well over-egg a refusal of service that has resulted in a £500 compensation order. This is not persecution as a result of belief. The law in Northern Ireland should and does (in line with Article 9 ECHR) protect people’s ability to hold Christian beliefs (or, at least, particular interpretations of biblical texts), but it does not advance the substance of those beliefs in such a way as to disadvantage those who do not hold them. Stripped of all of the hyperbole, there could only be one outcome in this case. If the decision is appealed, and the sorry saga continues, these fundamental features of the law in Northern Ireland are not going to change.

Ashers Bakery Loses "Gay Cake" Discrimination Case

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