In a ruling with potentially far-reaching implications, a judge in Northern Ireland has restricted the freedom of business owners to decide which goods and services they can supply. The law, which rightly protects people from discrimination, has now been extended to protect ideas. The judge decided what the bakers were really thinking and whether it was appropriate – the dreaded thought police in action. There is considerable concern that if this ruling stands, religion will have been effectively banished from the commercial sphere – you can have your faith, but you can’t take it to work.
The case is not about a gay cake as if you could have such a thing. It has also unhelpfully been framed a battle between the LGB community and religious groups. In reality it is battle between equality and freedom and both have suffered as a result of the court’s decision.
Equality is important and is supported by Christians – we are all made in the image of God. But equality must be held in tension with rights and responsibilities and in the context of the much richer notions of dignity and justice. When equality becomes the sole lens through which a situation is viewed, distortions can occur as we have seen in this case. The role of the law is to find a balance between these notions. Legally, this is done through ‘reasonable accommodation’. The Council of Europe, concerned with an emerging hierarchy of rights, has recently called on member states to promote reasonable accommodation to ensure effective and full enjoyment of freedom of religion. Freedom has been hard won, and is too often taken for granted. This case is a reminder of the dangers of taking a hierarchical approach.
Ashers named their bakery business after one of Jacob’s sons blessed for his bread and delicacies. Using a biblical name was a clear way to tie their faith to their business. Things were going well for the family business until a year ago when Gareth Lee asked Ashers bakery to make a cake with the slogan ‘Support Gay Marriage’ on it. Mr Lee had used the bakery before, and the company was, and remains, happy to serve him. As Ashers’ barrister said time and again during the hearing, “it was the content of the cake, not the characteristics of the customer that were critical to their decision.” The company initially accepted the order but later contacted Mr Lee to say that they could not fulfill the order as they are a Christian business. They apologised and arranged for a refund.
Mr Lee went to the Equality Commission who wrote to Ashers stating that the company had discriminated on the basis of sexual orientation. On further legal advice the Commission added that the company had discriminated on the grounds of religion and political opinion. The judge, to the surprise of many, found against Ashers on all counts and even the European Convention on Human Rights couldn’t save the company.
The McArthurs gave clear evidence that they did not know the sexual orientation of the customer and Mr Lee acknowledged he had been served before by the company. Despite this, the judge found that, “the McArthurs must have known or perceived that Mr Lee was gay or associated with others who were gay”. This is quite incredible – the judge has concluded that she knows the mind of the McArthurs better than they do. Surely the law is on shaky ground when it begins to perceive what people think and who they associate with?
The judge went on to say, “support for same sex marriage was indissociable from sexual orientation.” The reality is that the vast majority of people who support same sex marriage are heterosexual. The ONS has found that 1.3% of the population is LGB and according to the polls anywhere from 30-50% of the population support same sex marriage, while of course, some within the LGB community oppose same sex marriage. The company would not have made this cake for anyone, gay or straight.
As atheist Brendan O’Neill has noted, there is a new social orthodoxy in relation to same sex marriage in which dissent will not be tolerated. We must be wary of what John Stuart Mill called ‘the tyranny of prevailing opinion’. What began as a battle to remove state discrimination against the LGBT community, now seeks to use state power to punish those who refuse to support same-sex marriage. In the end, everyone will pay the price of this intolerance.
With respect to religion, a law designed to protect the belief of the customer or employee has 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. This interpretation of the law to include the religious beliefs of the supplier could have significant implications. Could a printer refuse to print a leaflet advertising abortion services because of their religious or political beliefs? If an employer reprimanded an employee for swearing and said it was because it offended their religious beliefs, would they be guilty of discrimination?
When it comes to political opinion, it is difficult to see how the Equality Commission NI can claim to be a neutral body, when it actively supports same sex marriage. The ruling on political opinion has implications for everyone, as a wide variety of opinions and ideas could be seen as political. No doubt some will now test the limits of this law by asking bakers and printers to produce products bearing a range of slogans. It has been suggested that if the Ashers had a policy of not making cakes with any political messages they would have been protected legally. Small businesses do not have teams of lawyers sitting around idly predicting these scenarios. The Commission itself did not seek to raise this as a ground in its initial letter of claim. The judgment makes no mention of having policies in place to protect businesses so they may not help anyway as that would arguably be to discriminate against all political opinions.
As Ashers’ barrister observed during the hearing, “Forcing individuals on pain of being in court to produce goods promoting a cause with which they strongly disagree, is the antithesis of democracy.” We await guidance from the Commission in light of this judgment, but the Chief Commissioner has already given his view, Christians need to “look at the law or maybe that is not the business they should be in.” How does that square with equality?
It is important to remember that people around the world are being persecuted and killed for their faith and their sexual orientation – an area of common ground between Christians and the LGBT community. This case is important, and appeals are possible, if not likely, but it must be kept in context. It seems that 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.
Finally, here is a video on the issue