In a ruling with far-reaching implications, a judge has today decided that business owners cannot choose which goods and services they can supply. The judge ruled that the McArthur family, who run Ashers bakery, were not entitled to decline to make a cake supporting same sex marriage and in doing so were guilty of discrimination.
The judge read out a lengthy judgment in court this morning, which will take some time to digest, but here are some initial thoughts.
This judgment will cause great concern for all those in business. It turns out the customer is always right and businesses have no discretion in deciding which goods and services to produce. The law rightly protects people from discrimination, but it has now extended that protection to ideas.
This ruling will come as a shock to the vast majority of people who polling shows supported Ashers. While the case will hopefully be appealed, that will lead to a prolonged period of uncertainty and nervousness amongst business owners. It will no doubt lead to further calls to change the law.
The McArthur family was found to have discriminated on the grounds of sexual orientation and on the basis of religion and political opinion. Despite the fact the McArthurs did not know the sexual orientation of the customer, and that they would have turned down a heterosexual customer ordering the same cake, the Judge has found that they discriminated on the grounds of sexual orientation.
With respect to religion, a law designed to protect the belief of the customer or employee had been extended and used against a business owner. Mr Lee’s beliefs were not relevant to the decision not to produce the cake – they were and remain unknown. To extend the law to include the religious beliefs of the supplier is we believe a significant change in the law that will have wider implications. It seems that religion has been effectively banished from the commercial sphere. Even the right to freedom of religion under the European Convention of Human Rights could not save the McArthurs.
It is important to remember there was no mention of political opinion in the original letter of claim. The Equality Commission, which supports same-sex marriage and is by definition a political organisation, added this ground later. It will now regulate which political opinions are allowed and which are unacceptable.
Given the importance of the issues involved, appeals are possible, if not likely. It seems likely this is only the end of round one and it may be some time before we are any the wiser. In the meantime the ambiguity helps no-one, but hopefully this will no longer be seen as a clash of gay rights and religious freedom – it is much more significant than that.