Posted: 2018-11-10

After the Appeal Court had ruled against Ashers bakery in the 'Gay Cake' row, the company had taken the matter to the Supreme Court. Read an analysis of the case.

THE UK Supreme Court ruled in October that Ashers bakery was within its rights to refuse to bake a cake with the message ‘Support Gay Marriage’ because the opinion was contrary to their beliefs. It ruled that the European Convention on Human Rights protected the right not to express an opinion they did not hold. In making this judgment the Supreme Court overturned the verdict of both the District Court and the Appeals Court in Northern Ireland.

It is a curious decision that printing a message on a customer’s cake implies compliance with that message. If a baker puts ‘Happy Birthday’ on a cake, does that mean that they are being forced to wish it to someone they don’t know? If a florist writes a sympathy card to go with flowers, does that mean that they are grieving with the relatives?

Yet the implication extends much further. Freedom of expression is a right which depends on others. I can have a private rant in my bedroom but it is hardly freedom of expression in any meaningful sense. It is only becomes meaningful in a social context if others facilitate or convey it: in print and social media, at public meetings, in art and literature, and whatever other public vehicles are available. An artist depends on the supplier of easels, paints, brushes, art galleries, etc. In theory, if this ruling were at all sensible, they could all refuse to do so if they don’t approve of the artist’s ‘message’. Freedom of expression is not just about words.

In a free society, we all help others to say what they want without agreeing with them. If we did not, it would be ‘every man for himself’. The irony of this decision, therefore, is that in no way was the customer Gareth Lee preventing the bakery from having its freedom of expression, for it was not bound by a message on a cake: it was the bakery that was denying Gareth Lee’s freedom of expression.

If the ruling allows certain providers of goods and services to choose which lawful message they are prepared to deliver  – a printer, say, but not a postal delivery officer  – then it effectively enables the law to have its cake and eat it.

Whether or not we agree that they had a legal obligation to comply, the fact remains that the bakery displayed intolerance of a perfectly legal opinion. It’s hardly a good example of ‘loving thy neighbour’. Yet they are somehow applauded by many Christians as champions of free speech and tolerance. We truly live in humptydumptyland.

The Court of Appeal had earlier ruled that Northern Ireland's Attorney General John Larkin could not himself refer the matter to the Supreme Court. Lord Chief Justice Sir Declan Morgan, hewever, stated that that avenue was still open to the McArthur family who own the bakery, and they have decided to do launch the appeal. A statement by the Christian Institute, which is backing the family, said that papers would be lodged with the Supreme Court in January.Earlier, District Judge Isobel Brownlie had ruled in May 2016 that the bakery had broken sexual orientation and political discrimination law and ordered it to pay £500. But Ashers said it could not, in conscience, produce a cake that they felt would be sinful and sought to overturn the judgment by appealing to the High Court. On 24th October 2016 Appeal court judges upheld the earlier ruling and said that, under law, the bakers were not allowed to provide a service only to people who agreed with their beliefs. The three appeal judges were Northern Ireland’s Lord Chief Justice, Sir Declan Morgan, and Lord Justices Weatherup and Weir. In delivering their judgment, Morgan rejected the argument of lawyers for Daniel McArthur and his family that the bakery would have been endorsing gay marriage equality by baking the cake. “The fact that a baker provides a cake for a particular team or portrays witches on a Halloween cake does not indicate any support for either,” the Lord Chief Justice said.He declared that the original judgment at Belfast recorders court had been correct in finding that, “as a matter of law”, Ashers had “discriminated against the respondent directly on the grounds of sexual orientation contrary to the Equality Act (Sexual Orientation) Regulations 2006”. He said the legislation on equality in the region could not be changed to suit one particular religious or political group.On Ashers’ stance regarding the cake, Morgan said: “The supplier may provide the particular service to all or to none but not to a selection of customers based on prohibited grounds. In the present case the appellants might elect not to provide a service that involves any religious or political message. What they may not do is provide a service that only reflects their own political or religious message in relation to sexual orientation.”

The background was that Ashers Bakery, in Co Antrim, is a Christian-owned and operated firm. In the spring of 2014 Gareth Lee, a gay activist, asked it to bake a cake for a civic event in Bangor Castle Town Hall, County Down, to mark International Day Against Homophobia and Transphobia on 14th May. The order was for the cake to feature the Sesame Street puppets, Bert and Ernie, the logo of Queerspace, and the slogan ‘Support Gay Marriage’. The bakery refused the customer’s request. The firm’s general manager said that marriage in Northern Ireland “still is defined as being a union between one man and one woman”, and added that his company was taking ‘a stand’. The company was reported to the Equality Commission for alleged discrimination, and the Commission is pursuing a civil case against the bakery.Ashers did not refuse to serve Lee, but it declined to make a cake with that particular message. We could well argue, and indeed it has, that the company is to be applauded for being honest and refusing to yield its principles to the way the wind is blowing.

Yet freedom and democracy are  meaningless unless they imply protecting our opponent’s opinions as well as our own. To quote the words attributed to Voltaire, “I disapprove of what you say, but I will defend to the death your right to say it”. George Orwell put it this way: “if liberty means anything at all, it means the right to tell people what they do not want to hear”.

There are many things in life that we don’t like but we ‘put up with’ them. This is what we mean when we say ‘let’s live and let live’. It is the essence of tolerance. The law rightly does not permit a left-wing teacher to refuse to teach a right-wing pupil because he objects to his politics. It rightly does not allow a doctor to refuse to treat a patient because he objects to the patient’s lifestyle.

A good working definition of tolerance is giving other human beings the right you claim for yourself, and arguably the bakery failed in this regard. Tolerance is indeed nothing less that an awareness of our common, flawed humanity and is thus a basic principle of any pluralist society. As such it may be defined as the deliberate choice not to interfere with or prohibit beliefs and behaviour of which we disapprove. Intolerance, by contrast, is the deliberate attempt to eliminate or censor disapproved opinions and conduct.

There are, of course, limits to tolerance. Clearly, we should not tolerate the intolerable. Threatening or insulting words intended to stir up hatred against other people on grounds of race or religion should not be tolerated, but opinions should not be protected from criticism.

In other words, the bakery’s owners have every right to disagree with the idea of gay marriage, but arguably they do not have the right to try to censor that idea by refusing custom in the open market place. Yes, Ashers were discriminating against an idea, not a person, and we may say that the law allows the first, while rightly preventing the second. But the law does not allow censorship of that idea, and in their own small way this is what the bakery tried to do.

So what we have in the cake row is an issue of discrimination by censorship and intolerance. And, let us be absolutely clear: it was the bakery that displayed it.

This row actually encapsulates much of what has happened in the northern part of Ireland over nearly four hundred years. Protestants and Catholics refused to enter each other’s place of worship because they didn’t agree with the message. Protestants and Catholics refused to send their children to schools run by the other religion because they did not agree with the message. Protestants and Catholics refused to vote for members of the ‘other tribe’ because they were suspicious of their message. And so on and so on. The segregation of the entire society is based upon ‘taking a stand’ and refusing to tolerate disagreement.

The DUP’s Paul Givan has presented a consultation paper to Stormont (closing date: 27th February) on a ‘conscience clause’ that would create a religious exemption in Northern Ireland’s equality legislation allowing businesses to refuse services to customers on the grounds of ‘strongly held religious convictions’. But who defines ‘religious’, and which religions? And why only religious convictions? Why not atheist convictions? Or simply ‘moral’ convictions? Why should religion be granted an opt out from the laws of the land?

Giving certain religious beliefs special preference is nothing new in the province but to enact that practice as a general law is tantamount to creating a theocratic dictatorship. There is no doubt that such a clause would lead to further victimisation of persecuted minorities, especially gays. Evangelical Protestant and Catholic opponents of gay marriage would almost certainly censor any opinion supporting it, given the opportunity to do so.

Givan says that under his proposed bill an evangelical greengrocer couldn’t refuse to sell an apple to a gay man because he wouldn’t be required to endorse, promote or facilitate a same-sex relationship, but a Catholic adoption agency could refuse to place a child with a same-sex couple because that would be to endorse a same-sex union. But this is frankly silly. On this logic, a greengrocer could refuse to sell apples to two gay men, or a restaurant refuse to serve a gay couple.

Indeed, this proposed 'conscience clause' could actually be used to strengthen the very sectarianism that blights the society. The Protestant baker could legally refuse to serve a Catholic on the grounds that he promotes an anti-Christian religion, and a Catholic baker could similarly refuse a Protestant. A Northern Ireland Freedom of Conscience Amendment Act would do nothing less than give religious people a licence to discriminate as they see fit. Bigotry and intolerance would be enshrined in law under the guise of 'conscience'.

Conservative Christians have a long history of opposing gay rights in Northern Ireland. They opposed the decriminalisation of homosexuality, they opposed civil partnerships, they oppose gay adoption and they oppose the use of gay blood. When we add opposition to women’s right to choose abortion, criminalising the purchase of sex, and promoting creation in schools and museums, we can see that they continue to present the Ulster fiefdom as the last bastion of bigotry, ruled by reactionary Christians hypocritically posing as the sole arbiters of morality and conscience.

Brian McClinton,  November-December 2014, October-December 2016, November 2018

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