Ashers case was not a victory for those opposed to gay marriage ... it was a victory for free expression
Supreme Court ruling asks hard questions of Equality Commission’s funding priorities, writes Alban Maginness
Whether one supports same-sex marriage or not, the Supreme Court decision in the Ashers case last week should be welcomed. This was never a case about same-sex marriage itself, but about the freedom of a Christian family business to refuse to be forced to express a view on a controversial matter of public policy with which they morally disagreed.
All who believe in freedom of conscience and expression should be happy with this important legal decision, which affirms the right of people not to be forced to accept a political view with which they disagree.
The Supreme Court unanimously decided that the McArthurs, the owners of Ashers Bakery, were lawfully entitled to object to icing a cake for Gareth Lee, whereby they would have been forced to support a message in support of same-sex marriage, to which they were conscientiously opposed.
This should not be seen as a victory for those opposed to same-sex marriage, but a victory for freedom of conscience and free expression.
A contrary result would have been very bad news for all who value political and religious freedom in a democratic society.
As the Supreme Court president, Lady Hale, said: “The objection was to the message, not the messenger.”
The Supreme Court concluded that there was no direct discrimination against Mr Lee because of his sexual orientation, but, rather, because objection was taken against the message that he wanted iced on the cake he wished to buy.
The evidence was that the McArthurs both employed and served gay people and treated them in a non-discriminatory way.
The court said that anyone who wanted that pro-same-sex marriage message would have been treated in the same way as Mr Lee. The McArthurs’ reason for refusing was their deeply held and genuine religious objection to same-sex marriage.
The court said that, by way of comparison, it was akin to a Christian printing business being required to print leaflets promoting an atheist message. In a nutshell, as the court emphatically explained, the objection was to the message and not to any particular person, or persons.
As far as same-sex marriage is concerned, nothing in this judgment adversely affects that campaign in Northern Ireland. This case does not affect that outstanding issue, which remains to be resolved by our non-functioning Assembly.
Nor is there anything at all in this decision that reduces, or undermines, the rights of gay people in Northern Ireland. It certainly does not, in any way, permit, or encourage, discrimination in goods or services to gay people here.
What this Supreme Court decision does is to reaffirm the right to freedom of thought, conscience, religion and freedom of expression, as contained in Articles 9 and 10 of the European Convention on Human Rights. It does this at a time when such freedoms are being threatened.
This judgment completely overturns the previous decision of the Northern Ireland Court of Appeal, which, in 2016, delivered a convoluted judgment which unduly complicated what appeared to ordinary people to be a straightforward issue of the right of free expression and conscience for the McArthur family.
At the time of its decision, the Appeal Court was rightly subject to sustained criticism nationally from gay rights advocates and liberal commen- tators, together with more conservative elements in the media. They together voiced concern that the judgment had potentially curtailed free expression and conscience.
The Court of Appeal explicitly dismissed the proposition that Ashers Bakery was being forced to make a statement in favour of same-sex marriage with which it disagreed.
But, by its recent judgment, the Supreme Court properly dismissed this bizarre proposition.
Questions arise for the Equality Commission in their enthusiastic pursuit of this case. People are bemused that this case was prioritised by the commission for special attention.
The commission, which is generally perceived as doing a good job, did not seem to worry about the disproportionate amount of time, effort and resources spent on this case. It is a fact that the Equality Commission spent more than £250,000 on this case — a huge chunk of public money — which may be seen as wasted by the man in the street at a time when the public purse is under pressure.
But now, it should reflect carefully on this case and in its future decision-making about other cases.
It should let itself be informed by the wider issues of freedom of expression and conscience arising out of the Supreme Court judgment.
The ‘gay cake’ case has been quite a saga, legally and media-wise. Much ink has been spilt over this apparently trivial issue of icing on a cake, and it has raised serious human rights questions and much emotion.
As the undaunted and long-time gay rights activist Peter Tatchell has said (probably with Voltaire in mind): “Although I profoundly disagree with Ashers ... in a free society, neither they, nor anyone else, should be forced to facilitate a political idea that they oppose.”
We all could learn from those wise words.