Wednesday, 7 December 2016

The Icing on the Gay Cake: what's the Appeal?


The McArthurs ...
The case of Ashers bakery and the ‘Gay Cake’ has prompted an outcry not just in Christian circles, but also from liberal sources, including the Guardian and Independent newspapers, as well as Peter Tatchell

Many find confirmation here of anti-Christian bias in equality law – a finding I dispute in The Jesus Candidate. 

The Ashers appeal ruling came too recently to have been examined in the book. So what is to be learnt? Does it change anything as far as the arguments go in The Jesus Candidate?
... and the icing 

The facts are straightforward. Same-sex marriage was recognised in most of the United Kingdom in March 2014. On 29th April 2014, the Northern Ireland Assembly voted, for the third time, against allowing same-sex marriage in the Province. 


... on the cake
A few days later, Gareth Lee placed an order for a cake. It was to be eaten on Friday, 17th May, at an event planned “to mark the end of the Northern Ireland anti-homophobia week and to mark the political momentum towards legislation for same-sex marriage.” The cake would be iced according to Mr Lee’s design, with the slogan “Support Gay Marriage” and the logo of the “QueerSpace” group to which he belonged. He placed the order with Ashers Bakery, a limited company with nine shops around the Belfast area, and a net worth of about £1.4million. Its directors are Mr and Mrs McArthur. The firm is equipped to scan an image and reproduce it on the icing of a cake. 

After accepting the order, the bakers received the design. They then refused the order, and refunded the deposit, because, as Christians, they were not prepared to place the particular message on the cake. Mr Lee was able to get the order fulfilled elsewhere, in time for his event. The Northern Ireland Equalities Commission decided to support Mr Lee in seeking redress for discrimination on grounds of sexual orientation. The Christian Institute supported the bakers’ defence. The case came before District Judge Brownlie in the County Court. She delivered judgment on 19th May, 2015, in favour of the claim, and awarded damages of £500. The defendants appealed. The Northern Ireland Appeal Court upheld Judge Brownlie’s ruling, in its findings published on 24th October 2016.

The question is whether the refusal to bake the cake amounted to unlawful discrimination. The courts looked at three issues.

1. The McArthurs said that they did not discriminate against Mr Lee, since his own sexuality was not relevant and they objected only to a message. So was this discrimination lawful? The court said it was not, on the grounds of “associative direct discrimination.”  It did not matter whether Mr Lee himself was gay or not. The McArthurs refused to fulfil the order because of its association with gay people generally. As the appeal court put it:

The benefit from the message or slogan on the cake could only accrue to gay or bisexual people. .. The reason that the order was cancelled was that the appellants would not provide a cake with a message supporting a right to marry for those of a particular sexual orientation … There was an exact correspondence between those of the particular sexual orientation and those in respect of whom the message supported the right to marry. This was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community. Accordingly this was direct discrimination.
2.     The bakers objected to the message because it was against their deeply held religious convictions – don’t they have a right in law to uphold these?  The courts found this question raises matters already resolved in previous cases, especially the Chymorvah Hotel’s famous refusal to offer a night in a double bed to two men. The right to freedom of religion is to be balanced with others’ rights. The Chymorvah hoteliers’ religious beliefs did not entitle them to confine their offer of a shared bed to heterosexual married couples, and ignore the rights given in law to their gay customers. Likewise the McArthurs’ undoubtedly genuine faith did not entitle them to refuse a service if this overrode the rights of gay people to equal treatment.
3.     By being required to ice the cake, the bakers were forced to support a view with which they did not agree – was this ‘compulsory speech’ violating their rights to free expression?  The courts did not think that, by icing a cake with a message specified by a customer, they would be indicating personal support - real or apparent - for the message. The county court said that “what the Defendants were asked to do did not require them to support, promote or endorse any viewpoint.” Evidence showed that the bakery often iced messages which the McArthurs did not personally support.

The Northern Ireland Attorney General has sought leave to appeal on constitutional grounds. Will John Larkin QC try to persuade the Supreme Court of the merits of the same argument that failed to convince the Northern Ireland Appeal Court? There he submitted that, under devolution legislation, the Northern Ireland Assembly cannot make laws that discriminate on religious grounds; that, by being required to fulfil Mr Lee’s order, the bakers were penalised for their religious views; and therefore that the (Northern Irish) legislation applied in the case cannot be valid. This sounds like the same argument previously heard, and rejected, by the courts. Religious freedom does not – the courts have conclusively found – imply a right for employees and businesses to pick and choose the tasks they do or the customers they serve.

But I don’t think the matter should end there. As the courts clearly understood, the bakers were asked to ice a slogan for use in a political campaign against a decision of the Northern Ireland Assembly. The McArthurs agreed with their legislature’s decision, and did not want their work used in a campaign against it.  Their view would be, I guess, that reserving marriage, as a legal concept, as a monogamous relationship between two people of opposite genders is to the ‘benefit’ of all, regardless of individual variations in sexuality or sexual preference. The courts thought that overturning the decision of the legislature would be to ‘benefit’ gay people and so refusing services with the effect of supporting such opposition is unlawful discrimination. 

This sounds like judicial review by proxy. If Ashers bakery is guilty of unlawful discrimination, then the real issue – surely - is the Assembly’s decision, and this should have been the matter before the courts.

There are, it seems to me, risks in the way the Ashers ruling deploys ‘associative discrimination’ in the context of a political campaign. Under the Equality Act 2010, it is unlawful to discriminate because of “religion or belief.” This Act does not extend to Northern Ireland, where an added complication is that it is unlawful to discriminate on grounds on “political opinion” – a minefield the courts avoided when they based their judgment on the issue of sexual orientation. But mainland courts have already had to consider if, and when, a political viewpoint amounts to a protected “belief.” Sooner or later, it seems to me, someone will refuse services for a political campaign - and then face threatened action for ‘associative discrimination’ against adherents of the beliefs advocated by the campaign.

The case is not credibly, at any rate in my view, an instance of religious discrimination or denial of free speech. No one could sensibly consider the McArthurs authors or editors of text processed through their scanning and icing machines. 

Nonetheless it will be disappointing if the Supreme Court does not take a look at the matter. The judge-made doctrine of ‘associative discrimination’ is clearly useful in dealing with someone denied, say, a job or a home due to prejudice aroused by family or social connections. 

But can it really bear the load added by the Ashers ruling - an obligation to enter into a business relationship with a political campaign against a decision made by an elected parliament?    

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