If As hers lose sin the Supreme Courtt his week, we all lose
The ‘same-sex’ cake case has never been about faith or being gay; it is fundamentally about personal freedom, argues Fionola Meredith
These are foundational liberties, vital to all of us, that were so dangerously undermined by the ruling
Forcing people to disseminate beliefs they fundamentally disagree with is not equality
It was the ‘gay cake’ that wasn’t baked, but now the case of this mythical gateau will come before the highest court in the land. This week the Supreme Court, sitting for the first time in Belfast, will consider the appeal by Ashers Baking Company over its refusal, almost four years ago, to bake a cake bearing the slogan ‘Support Gay Marriage’.
Five justices — Supreme Court president Lady Hale; deputy president Lord Mance; former Lord Chief Justice of Northern Ireland Lord Kerr; Lady Black and Lord Hodge — will sit in the Inn of Court in The Bar Library at the Royal Courts of Justice.
So, how did a declined bakery order involving just three disputed words end up being referred to the most august body of judges in the United Kingdom?
This whole sorry saga started in 2014 when LGBT activist Gareth Lee walked into Ashers’ shop in Belfast and asked for a £36.50 cake decorated with images of the Sesame Street puppets Bert and Ernie, together with the above-mentioned slogan.
Ashers declined the order because it carried a message contrary to the traditionalist Christian beliefs of the owners and another bakery made the cake.
The Equality Commission took up Mr Lee’s case and, in 2015, a Belfast County Court judge held that the bakery had unlawfully discriminated against Mr Lee on grounds of sexual orientation and religious belief or political opinion.
Ashers, which is owned by the McArthur family, was ordered to pay £500 compensation to Mr Lee for injury to his feelings.
In May 2016 Ashers went to the Court of Appeal in Belfast in an attempt to overturn the decision.
The Court of Appeal ruled against Ashers, but decided in December of that year to leave it to the Supreme Court to decide whether to hear a further appeal.
The five judges of the Supreme Court will consider whether Ashers directly discriminated against a customer on the grounds of sexual orientation, contrary to equality and fair employment laws.
They will also weigh up whether the McArthurs’ own rights to freedom of thought, belief and religion and to freedom of expression and protection from discrimination have been breached, according to the European Convention on Human Rights.
It is expected that the Supreme Court will hear arguments from Attorney General John Larkin QC, who has questioned the validity of the laws used against the company.
You might think that the top of an iced cake is a weird battleground for a war between conservative Christians and gay rights campaigners — and you’d be right. But, bizarre as it has always sounded, this case raises vital questions about whether individuals, businesses or institutions can be — or should be — compelled to accept prevailing political ideas.
To my mind, the gay cake case has never really been about faith or sexuality.
What people must understand is that this is fundamentally a case about personal freedom. The freedom to choose your own political and religious beliefs and to express them in your own way.
The right to say no to political ideals you do not share.
These are the foundational liberties, vital to all of us, that were so dangerously undermined by the Appeal Court’s 2016 decision to uphold the verdict against Ashers Baking Company.
By that legislative logic, a Muslim printer could be compelled to produce Charlie Hebdo-style cartoon images of the Prophet Muhammad. The lesbian owner of a clothing company could have to make T-shirts saying gay people will burn in Hell. A feminist-owned bakery could be forced to decorate prolife cakes saying ‘Abortion is Murder’.
As I said at the time, when will this warped, totalitarian fairy tale end? No company should be under any obligation to facilitate the dissemination of beliefs that are antithetical to the ethos of that business.
This is not a case of anti-gay discrimination. If Ashers had refused to serve Gareth Lee because he was gay then that would have been a clear act of discrimination and the bakery’s owners would, rightly, deserve to be prosecuted and fined.
But that is not what happened.
Refusing to write a political slogan requested by that customer is an entirely different matter. The message itself — not the customer requesting it — has always been the issue for Ashers.
The initial ruling, upheld on appeal, that there had been direct discrimination not just against Mr Lee, but seemingly against the entire gay community in Northern Ireland, never made sense to me.
For instance, I myself could quite happily have gone in to Ashers bakery and ordered a cake saying ‘Support Gay Marriage’. I do, indeed, support marriage equality and yet I am not gay.
To my mind, the inference that the act of requesting such a cake automatically identifies a person as gay and that the declining of the request therefore constitutes direct discrimination by association simply does not stand up to logical scrutiny. You do not have to be gay to
order a ‘gay’ cake. One person who has fought for freedom of conscience, the fundamental human right not to be forced to express approval for a particular political position, is Peter Tatchell, the veteran gay rights activist.
It must have been hard for him to speak out in support of the McArthurs’ cause, given their opposition to gay marriage, but Mr Tatchell is a man of great bravery and principle, so he did.
“This (Appeal Court) verdict is a defeat for freedom of expression,” he said at the time.
“It seems that businesses cannot now lawfully refuse a customer’s request to propagate a message, even if it is a sexist, xenophobic or anti-gay message and even if the business has a conscientious objection to it.
“Although I strongly disagree with Ashers’ opposition to marriage equality, in a free society neither they nor anyone else should be compelled to facilitate a political idea that they oppose.”
The Equality Commission, which is responsible for initiating this costly, vexatious and divisive case, would do well to ponder Tatchell’s wise words as it awaits the verdict of the Supreme Court.
Forcing people to disseminate political beliefs that they fundamentally disagree with is not equality.
It is not tolerance. It is not freedom.
If Ashers lose this week, we all lose.