‘We’d rather it hadn’t come to this’... McArthurs put their arguments over same-sex marriage cake ruling to the highest court in the land
Cake row appeal opens at Supreme Court Family bids to quash two previous rulings
CHRISTIAN bakers have been punished by the state for refusing to make a cake with a progay marriage slogan, the UK’s highest court heard yesterday.
Counsel for the McArthur family claimed they face being compelled to provide a product which went against their deeply-held religious beliefs.
The McArthurs, who run Ashers Baking Company, declined an order placed by customer Gareth Lee at its Belfast city centre shop in May 2014.
They are now seeking to overturn two previous rulings that held they directly discriminated against Mr Lee due to his sexuality. As the appeal opened at the Supreme Court, sitting in Northern Ireland for the first time, the family’s barrister stressed their strong views on marriage.
David Scoffield QC told the five justices hearing the case: “Mr and Mrs McArthur have been penalised by the state, in the form of the judgment, for failing to create and provide a product bearing an explicit slogan ‘Support Gay Marriage’ to which they have an objection of conscience.”
Mr Lee, a gay rights activist, had requested a cake depicting Sesame Street characters Bert and Ernie and the controversial motto for an event to mark International Day Against Homophobia.
Bosses at the bakery refunded his money for the order because the message went against their Christian faith.
Backed by the Equality Commission, Mr Lee sued, claiming he was left feeling like a lesser person.
In 2015 Belfast County Court held that the bakery had unlawfully discriminated against him on grounds of sexual orientation and religious belief or political opinion.
The firm was also ordered to pay £500 compensation to Mr Lee, whose legal action was backed by the Equality Commission.
With the verdict upheld at the Court of Appeal in October 2016, the McArthurs have taken their fight to the Supreme Court.
Before entering the Royal Courts of Justice in Belfast, the bakery’s general manager Daniel McArthur reiterated their problem has always been the message, not the customer.
He said: “We’d rather it hadn’t come to this. But the Equality Commission has pushed for an interpretation of the law which extinguishes conscience.
“They seem to think that some people are more equal than others.”
With Northern Ireland Attorney General John Larkin QC supporting the McArthurs’ case, Mr Scoffield contended there was no unlawful discrimination involved.
“The reason they didn’t fulfil the order was on the basis of those (religious) beliefs,” he told the court.
“Notwithstanding that, the appellants have been held liable and ordered to pay damages. In our submission that’s plainly a case of compelled speech.”
Counsel argued it was irrelevant to the family that Mr Lee happened to be gay.
“They would equally have refused to provide that cake with the slogan to a heterosexual cus- tomer,” he said. “Their difficulty was the content of the cake, not the characteristic of the customer.”
Rejecting the finding of direct discrimination, he added: “If Mr Lee had been straight there would have been no difference.”
Mr Scoffield also submitted that the lower courts’ rulings imposed an obligation on businesses to provide bespoke, lawful goods “however offensive the product may be to the traders deeply-held religious beliefs”.
The court heard Ashers has been in business for 15 years, making 1,600 celebration cakes annually.
“An issue like this has never arisen before or since,” Mr Scoffield added.
Counsel for Mr Lee and the Equality Commission responded by stressing the case was about conflicting rights and dealing with any breach of the legislation.
Robin Allen QC said: “Mr Lee and the Commission do not in any sense downplay the importance to Mr and Mrs McArthur of their conscience, their views on same-sex orientation and the biblical concept of marriage.
“It’s not our case they are not entitled to those views, it’s not our case that they are not serious from their point of view, and it’s not our case that they are not worthy of respect.”
The barrister continued: “This is a case that has an interest beyond just the parties.
“It’s concerned partly with the separation of roles within the state, partly with how democratically laws are constructed to deal with difficult issues, and how the effect of these laws and individual circumstances bend or do not bend to human rights... and the role of the court in dealing with them.”
The two lower courts had got the law correct, Mr Allen told the five justices.
“Not only that — that the law itself was the product of deep democratic consideration over a long period of time involving wide consultation input at the highest level of human rights bodies trying to work out how to deal with issues of discrimination on the grounds of sexual orientation and discrimination in relation to religion and belief.”
Setting out the circumstances behind his client’s visit to the bakery, Mr Allen said: “He didn’t go in there with any abusive intent.
“He knew nothing at all of the
religious beliefs of Mr and Mrs McArthur, and there was nothing at all that might have indicated that to him.”
Mr Lee was told he could bring in a logo to put on the cake, the court heard.
He picked up a leaflet showing Ashers would ice products depicting everything from a witch celebrating Halloween to football teams and anniversaries.
“That was what Mr Lee understood was the offer that they were making to the world at large when he went in with his logo of Bert and Ernie and ‘Support Gay Marriage’,” the barrister submitted.
“What Mr Lee asked them to do was not egregious, it was not outside the ordinary course of business they did, it was not a trial and not an abuse.
“I say this loudly now... because commentators have sug- gested otherwise. It’s not the case that Mr Lee was doing anything wrong or unusual or strange in bringing that logo and asking for it to be iced,” Mr Allen added.
The barrister contended that the bakery would have been entitled to say they “don’t do politics” at all.
“Then, in that case, it’s not making any distinction between different political classes.”
The case continues.