Law Thirty-Six

You gotta go with what works

A man went into a bakery and ordered a cake. You’ll never believe what happened next

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On 9 May last year, a man walked into a shop and ordered a cake he wanted made for an event. His order was accepted, he paid a deposit and left the shop. Three days later, one of the directors of the bakery called the man to say that they’d changed their minds and wouldn’t be able to fulfil the order. They offered a full refund of the deposit. The man went on to have his cake made elsewhere.

On 26 March, the matter reached the High Court in Belfast. That seems a little hard to believe, so let’s fill in the rest of the details.

When Gareth Lee ordered his cake, he had a specific design in mind: a picture of Bert and Ernie from Sesame Street with the message ‘Support Gay Marriage’ across the top and the logo of QueerSpace, a pro-LBGT voluntary organisation based in Belfast.

The bakers, Ashers Bakery Company Ltd, is owned by Christians Colin and Karen McArthur, members of the Dunseverick Baptist Church. The name of the company comes from one of the tribes of Israel in the Bible. When Mrs McArthur called Mr Lee to tell him that they were cancelling the order, it was because a cake promoting gay marriage went against their religious beliefs. Mr Lee complained to the Equality Commission of Northern Ireland (ECNI). They in turn sent a letter to Ashers on 26 June stating that the company had acted unlawfully, contrary to Regulation 5 of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006, which (to quote the ECNI’s letter) “prohibits discrimination in the provision of goods facilities and services to a person seeking or obtaining to use [them] on the grounds of sexual orientation.”

The ECNI asked Ashers to admit they’d made a mistake and to give an assurance that this would not happen again. The directors of Ashers stuck to their conscience and declined. Letters were exchanged back and forth between solicitors, with The Christian Institute and its legal defence fund coming to the aid of Ashers and allowing them to take legal advice. Ultimately, the two parties could not come to a compromise and the matter ended up in Belfast County Court. The trial lasted three days and Judge Isobel Brownlie handed down her verdict today: Ashers had unlawfully discriminated against Mr Lee.

The McArthurs found themselves in the middle of a fight they probably didn’t see coming. Their religious beliefs are sincerely held. They have presented Ashers as being a Christian business, although this was challenged during the trial and the explanation of where the company’s name comes from was not added to the site until after the ECNI’s first letter. Mr Lee tends to be described in the press as an ‘activist’, which may be a loaded word, but he’s certainly been involved with QueerSpace for a number of years and campaigns on their behalf. Perhaps he was as ignorant as me of the sons of Jacob and didn’t know that the owners of the business had a Christian background. Perhaps he knew exactly what he was doing when he walked through the door.

What is interesting is how the parties have behaved in public since this turned into a court battle. Mr Lee has disappeared into the background. He does not appear to have given interviews, and after the outcome of the case today, his lawyer spoke for him. The McArthur family have taken to the press, very successfully raising the profile of the case and pointing out the problems that it presented to people whose faith tells them to act one way when the law requires something else.

There were several nuances in the legal arguments involved that kept the barristers tied up. For example:

  • Is this actually discrimination based on sexual orientation? Ashers say that they would have turned away the cake order regardless of whether the person placing the order was gay or straight.
  • Gay marriage is not legal in Northern Ireland, so this cake is promoting something illegal.

As is the case in our legal system, the judge’s ruling had to be founded on answers to these legal issues. Judge Brownlie decided that Ashers “must have known or had the perception that the plaintiff was gay” and that “they must have known that the plaintiff supported gay marriage or associated with others who supported gay marriage.” While the second statement is probably irrelevant, the first statement – that Ashers must have known or perceived that Mr Lee is gay – is required for the discrimination to be unlawful. On the wording of the Regulations, it is not unlawful to discriminate against a person who believes that same-sex marriage is wrong, only to discriminate against a person on the basis of their sexual orientation (or perceived orientation).

There have been calls since this case came to light to add a ‘conscience clause’ to the legislation to prevent cases like this from having to come to court. The DUP have been arguing in favour of this, as has UKIP, with Sinn Fein among those opposed. Colin Hart, Director for the Christian Institute has said that there should be “reasonable accommodation to protect those, who for religious or philosophical reasons, believe that marriage is the lifelong union of one man and one woman.”

And there is the larger question: should the fact that you have a religious or philosophical belief that says same sex relationships are wrong allow you to discriminate against those groups; or, to turn it around, do we force people with these beliefs to do something that they may feel was promoting same sex relationships. The Regulations provide an exemption for religious organisations but not for “Christian businesses”, which it was felt could not be defined legally. Judge Brownlie touched on this in her judgement, saying that “[Ashers] are not a religious organisation. They conduct a business for profit”.

Let’s remove the words “or philosophical” from Mr Hart’s statement for a moment, because they’re problematic. Just because I might have constructed a personal philosophy that says (to take this example) that gay marriage is wrong shouldn’t give me an exemption from equality legislation. Let’s focus instead on the concept of “reasonable accommodation” based on people’s religious beliefs. The Regulations provide some useful wording about how this might work – where there is “…[conflict] with the strongly held religious convictions of a significant number of the religion’s followers.” So this would allow for minority views within a religion so long as they were shared by a significant number of its followers.

What’s wrong with providing “reasonable accommodation” for those whose belief?

Let’s take a step back and ask why we have anti-discrimination legislation in the first place. Presumably the primary purpose is to protect certain groups in society. But isn’t the secondary purpose to change people’s attitudes? That’s not to say that every law is created with this purpose – we don’t need The Theft Act 1969 to tell us that stealing is wrong.

(Source – xkcd)

That group of people whose attitudes the law is trying to change includes those whose beliefs are based on religious grounds. You could say that these religious groups are being targeted because their opinions are now a minority view. A letter writer to the Greenville News tackled the question of whether right and wrong should be decided based on public opinion, concluding that “public opinion shifts like the tides but God’s laws are unchanging”. She argues that slavery was always wrong even when public opinion held otherwise. The trouble is that people’s interpretations of religious teachings can be affected by public opinion.

“Slavery, racial discrimination and segregation, and opposition to women’s rights were all supported by strong religious arguments bolstered by citations to the Bible.  As scholarly work has shown, these religious views were deeply held by many people.”

(Source – Wake Forest Law Review)

Today, I’m sure the common reading of the Bible would not support (for example) slavery or racial segregation.

This is, ultimately, a question of competing rights. Both sides could argue that their freedom of speech was at risk. DUP MLA Paul Givan said “What we cannot have is a hierarchy of rights, and today there’s a clear hierarchy being established that gay rights are more important than the rights of people to hold religious beliefs” and with due respect to Mr Givan, that’s clearly nonsense. If the case had been decided in favour of Ashers, that would have been establishing that the right to hold religious beliefs was more important than gay rights. The rights and freedoms of Mr Lee and the MacArthurs were in conflict here, and any outcome was going to set a “hierarchy”, although I wouldn’t say that the judgement should be taken as saying that this particular hierarchy is true for all situations.

Much has also been made on the question of whether Ashers would really have been ‘promoting’ gay marriage by making this cake. If they’d produced another cake the following week for another customer with the title “Against Gay Marriage”, would people be saying they were hypocritical or saying that they clearly have a wide customer base? In this case, I would say that baking this cake would not have amounted to promotion unless (for example) they displayed the cake in their shop window. The MacArthurs were not being asked to make a statement that they themselves supported gay marriage, nor were they being asked to take part in or attend a gay marriage themselves.

But I’d also say that the question of whether this constituted ‘promotion’ isn’t really relevant. Consider a taxi driver who refuses a fare because the would-be passengers were gay. Now consider a limo driver who refuses to take a booking to take the brides or grooms to a same-sex marriage service on the basis of their sexual orientation. The latter example might possibly be interpreted as ‘promoting’ or at least ‘supporting’, but the first example is just a simple provision of service with no particular message attached. But in both examples, the impact on individuals who are refused service is the same: they’re left stood at the side of the road whereas a heterosexual couple in the same scenarios would not have been.

Another example of a business service gives greater pause for concern, though. Consider the Muslim printer asked to reproduce a cartoon of the prophet Mohammed. Here, the person is absolutely being asked to do something that is against their religious beliefs. If we argue that the law is right to compel the printer to take this job, we leave them with a very stark choice. Robin Allen QC, representing Mr Lee, was very clear – if the MacArthurs could not follow the law because of their religious beliefs then they needed to find another line of business.

And this seems harsh, but it is the necessary conclusion of having anti-discrimination legislation. The law is there to guide the actions of people whose personal belief is that they should discriminate against a group. Whatever is in their minds, if they have chosen to go into business then the guest house owner must offer a double room to same sex couples, the printer must be willing to print wedding invites for same sex marriages, the florist must provide flowers, and the bake must bake the cake.

As for Ashers and the MacArthurs, for now they’re liable for the agreed damages of £500. The Christian Institute has met their legal expenses. The next question is whether they will appeal the decision…


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  1. Pingback: Oh, Coleen | Law Thirty-Six

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