Christian family bakery wins Supreme Court appeal over “gay cake” case | | ISLAM21C | 11 October 2018
The supreme court has ruled this morning in favour of Christian owners of a bakery that refused to make the so-called “gay cake”.
The five judges issuing a judgement today in the highest court in the UK ruled unanimously in favour of Ashers bakery, stating that their refusal to make a cake supporting gay marriage was not discriminatory.
The dispute began in 2014, after gay rights activist Gareth Lee had approached the family-run bakery in Northern Ireland to make a cake with the slogan “Support Gay Marriage” on it. After the Christian owners of the bakery refused on account of their beliefs, Lee sued the company for discrimination on grounds of sexual orientation and political beliefs.
In 2015 a Belfast judge ruled against the bakery, concluding that they had discriminated against Lee. The bakery then appealed this decision and lost in 2016, being told by the appeal court judges that they were not allowed to “provide a service only to people who agreed with their religious beliefs.”
Today the family-run firm has won its appeal in the Supreme Court after a lengthy legal battle lasting more than four years.
The activist Mr Lee who brought on the case against the bakery was aided by the Equality Commission for Northern Ireland. After today’s Supreme Court ruling that this was not a case of discrimination, questions are being asked whether it was right for them to spend more than £150,000 of public money on this case.
The family-run business reportedly spent more than £200,000 in their legal fees, which is being paid by The Christian Institute, a charity and lobby group.
Many are thus calling this the most expensive cake in the UK’s history. However it is clearly the subject of a deeper legal tension between different types of rights.
Daniel McArthur, the bakery’s general manager said outside the court:
“We’re particularly pleased the Supreme Court emphatically accepted what we’ve said all along – we did not turn down this order because of the person who made it, but because of the message itself.
“I know a lot of people will be glad to hear this ruling today, because this ruling protects freedom of speech and freedom of conscience for everyone.”
After the ruling was announced, Gareth Lee said:
“All I wanted was to order a cake in a shop that sold cakes to order. I paid my money, my money was taken and then a few days later it was refused. That made me feel like a second-class citizen.”
Dr. Michael Wardlow, Chief Commissioner of the Equality Commission for Northern Ireland said.
“There is a concern that this judgment may raise uncertainty about the application of equality law in the commercial sphere, both about what businesses can do and what customers may expect; and that the beliefs of business owners may take precedence over a customer’s equality rights, which in our view is contrary to what the legislature intended.”
Jim Allister, leader of the Traditional Unionist Voice political party in Northern Ireland, said:
“This is a timely judgement in bringing common sense to an issue which, fuelled by LGBT activists and extremists, had run away with itself.
“The effort to impose the LGBT agenda on Christian businesses by compelling promotion of their political demands, irrespective of the conscience or religious belief of the business owner, needed to be reined in.”
The supreme court has given what appears to be a rare glimmer of nuance distinguishing between a person and their views, which seems to be absent in the predominant reporting and commentating over the years—including the lower courts themselves. After all, without the LGBT ideology aspect of this dispute, it is difficult to imagine any other campaigning and promotion being subject of such a costly dispute, such as someone refusing to bake a “Support Brexit” or “Support Corbyn” cake.
Mr McArthur also said outside court:
“Family businesses like ours are free to focus on giving all their customers the best service they can – without being forced to promote other people’s campaigns.”
It is yet to be seen if Muslim businesses and civil society will be afforded similar privileges of disagreeing with the promotion of LGBT ideology and campaigning, or any other. However it is unlikely to be mercifully granted by privileged groups, thus requires cost and risk of sacrifice and struggle. This costly and lengthy battle can be seen as a broader dispute between two already highly privileged groups.
If Muslims are truly to see themselves as equal participants in fashioning the cultural, philosophical and legal landscape in the UK’s future, then such struggles need to be had, and they may be lengthier and more costly, if we are to make a more genuinely tolerant society. For it is not true diversity and tolerance for one privileged group to enforce its opinions—including social and ideological constructs about gender, sexuality, love, and so on—upon others in the name of diversity and tolerance.
Yesterday, the Supreme Court handed down judgment in Lee v Ashers Baking Company Ltd & Ors (Northern Ireland)  UKSC 49.
As every regular reader will know, Gareth Lee is a gay man associated with QueerSpace, an organisation for the lesbian, gay, bisexual and transgendered community in Northern Ireland. To mark the International Day Against Homophobia and Transphobia, in May 2014 he ordered a cake from Ashers Baking bearing the slogan “Support Gay Marriage” and a picture of the Sesame Street puppets Bert and Ernie. He had previously bought things at the same branch of Ashers and had become aware, from a leaflet, that he could have a cake iced with a graphic of his own design. Ashers initially accepted his order but Mrs Karen McArthur subsequently telephoned him to say that his order could not be fulfilled because Ashers was “a Christian business and, in hindsight, she should not have taken the order”: she apologised and refunded his money.
In Lee v Ashers Baking Co Ltd & Anor  NICty 2, Mr Lee claimed before Belfast County Court that he had been discriminated against, contrary to the provisions of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 and/or the Fair Employment and Treatment (Northern Ireland) Order 1998. District Judge Brownlie held the company liable for unlawful discrimination contrary to the provisions of the 2006 Regulations and the 1998 Order and ruled that it could not rely on the protection afforded by Article 9 ECHR. That judgment was subsequently upheld on appeal; in Lee v McArthur & Ors  NICA 29 the Court [Morgan LCJ, Weatherup and Weir LJJ] held that Ashers had discriminated directly against Mr Lee on grounds of sexual orientation by refusing to make the cake and, further, that the Regulations and Order were not incompatible with Articles 9, 10 or 14 ECHR.
The Ashers Baking and the McArthurs appealed; their appeal was heard together with two associated references by the Attorney General for Northern Ireland on devolution issues.
The Supreme Court’s judgment, though unanimous, was in two parts: Lady Hale PSC gave judgment on the discrimination issue, while the judgment on the procedural issue as to whether or not an appeal lay against the decision of the Northern Ireland Court of Appeal was given by Lord Mance. What follows concentrated on the discrimination issue.
In the opinion of Lady Hale, the substantive question before the Court was
“whether it is unlawful discrimination, either on grounds of sexual orientation, or on grounds of religious belief or political opinion, for a bakery to refuse to supply a cake iced with the message ‘support gay marriage’ because of the sincere religious belief of its owners that gay marriage is inconsistent with Biblical teaching and therefore unacceptable to God. If the prima facie answer to either question is ‘yes’, then questions arise as to the rights of the bakery and its owners to freedom of religion and freedom of expression, under articles 9 and 10 of the European Convention on Human Rights, and what difference, if any, those rights might make to that prima facie answer.” .
In the County Court, DJ Brownlie had concluded that support for same sex marriage was “indissociable” from homosexual orientation. Lady Hale rejected that conclusion as a misunderstanding of
“… the role that ‘indissociability’ plays in direct discrimination. It comes into play when the express or overt criterion used as the reason for less favourable treatment is not the protected characteristic itself but some proxy for it” .
She went on to point out that people of all sexual orientations supported gay marriage and that it was not a proxy for any particular sexual orientation . Nor did she agree with the Court of Appeal that the message on the cake could only benefit gay or bisexual people:
“It could also accrue to the benefit of the children, the parents, the families and friends of gay people who wished to show their commitment to one another in marriage, as well as to the wider community who recognise the social benefits which such commitment can bring” .
Further, there had been no associative discrimination because “In a nutshell, the objection was to the message and not to any particular person or persons” . Moreover, under the provisions of the Fair Employment and Treatment (Northern Ireland) Order 1998, “the less favourable treatment prohibited by FETO must be on the grounds of religious belief or political opinion of someone other than the person meting out that treatment” [45: emphasis added]. The objection had not been to Mr Lee because he, or anyone with whom he associated, held a political opinion supporting gay marriage: the McArthurs had objected to being required to promote the message on the cake: “The less favourable treatment was afforded to the message, not to the man” and Ashers had been quite prepared to serve him in other ways .
As to the issue of Convention rights, she noted that rights under Articles 9 and 10 might be limited or restricted in accordance with the law where the limitation was necessary in a democratic society and pursued a legitimate aim:
“It is, of course, the case that businesses offering services to the public are not entitled to discriminate on certain grounds. The bakery could not refuse to provide a cake – or any other of their products – to Mr Lee because he was a gay man or because he supported gay marriage. But that important fact does not amount to a justification for something completely different – obliging them to supply a cake iced with a message with which they profoundly disagreed. In my view, they would be entitled to refuse to do that whatever the message conveyed by the icing on the cake – support for living in sin, support for a particular political party, support for a particular religious denomination. The fact that this particular message had to do with sexual orientation is irrelevant to the FETO claim” [55: emphasis added].
Nor did she believe that the Fair Employment and Treatment (Northern Ireland) Order had to be read or given effect “in such a way as to compel providers of goods, facilities and services to express a message with which they disagree, unless justification is shown for doing so” . Furthermore:
“As the courts below reached a different conclusion on this issue, they did not have to consider the position of the company separately from that of Mr and Mrs McArthur. It is the case that in X v Switzerland… and in Kustannus Oy Vapaa Ajattelija Ab v Finland… the European Commission of Human Rights held that limited companies could not rely upon article 9(1) to resist paying church taxes. In this case, however, to hold the company liable when the McArthurs are not would effectively negate their convention rights. In holding that the company is not liable, this court is not holding that the company has rights under article 9; rather, it is upholding the rights of the McArthurs under that article” [57: emphasis added]