So I couldn’t attend court today but the team were there reporting back on all that happened. Below is our best summary but we don’t claim it is an exact account.
Ashers’s QC finished up this morning arguing that the law is required to to find a reasonable accommodation between different rights. He emphasised that for the McArthurs this was a conscience matter based on a genuinely held belief that it would be sinful to participate in supporting same sex marriage. He also indicated that he largely agreed with the Attorney General on the compatibility arguments he was about to make.
The Attorney General argued this case is primarily about freedom of expression – the right not to be compelled to express a view contrary to your one views or beliefs. It is not primarily a case about sexual orientation. He suggested the words intended for the cake amount to a theologically loaded expression of a lawful political opinion. He argued that the Northern Ireland Constitution Act 1973 offers more protection for religious beliefs and political opinion which prevail over those which don’t enjoy this protection. He argued that a balancing act is required – the burden on Mr Lee is far less than on Ashers – he had many other options whereas Ashers did not – either make the cake or face court. The AG also argued that the right to decline to express a view inconsistent with religious belief is protected under ECHR.
Basically, the AG is saying that the Sexual Orientation Regulations and other legislation must be interpreted in such a way to respect the religious and political views of Ashers which are constitutionally protected. If they cannot be interpreted in that way – they should be set aside.
He concluded – the case for Mr Lee is put with the appearance of sweet reasonableness but it cannot be disguised that Ashers are being compelled, on pain of civil liability, to burn a pinch of incense at the altar of a god they do not worship. The constitutional law of NI, supplemented by the ECHR, resists such compulsion.
The Equality Commission’s QC (Mr Allen) opened his case this afternoon. He suggested the words on the cake were a message and that calling them a slogan potentially trivialised the issue. He argued that the AG’s submissions were entirely self-defeating – essentially anybody found guilty of discrimination would be able to argue that under constitutional law they ought to be able to act in accordance with that religion or belief – trumping any discrimination claim. He also argued there was a danger of creating a hierarchy of religious rights. On the general issue of conscience approaches, he argued for the importance of legal certainty, particularly in commerce.
Mr Allen said that putting a message on a cake did not mean Ashers supported the message. He said that Ashers sometimes branded a cake with their logo when they wanted to expressly associate themselves with the message. There was discussion as to whether the message on the cake was blasphemous. Mr Allen argued this was not relevant as we are talking about civil marriage. (This line is used by many people and I think it is flawed. You can have a civil or religious wedding ceremony, but there is only one marriage. Civil marriage is a misnomer in my opinion)
Mr Allen argued that this is no more forced speech than delivery merchants or the post office who delivered leaflets for elections in NI, or a print shop. One of the judges asked – is facing fine of £500 to print something contrary to religious beliefs not forced speech? Mr Allan disagreed- once you offer a service – ‘build a cake, your design’ – it is difficult to say you are being forced.
The day finished with Mr Allen focussing in on the word ‘gay’. One judge suggested that if Ashers said they oppose ‘gay marriage’ then clearly the word gay in and of itself isn’t problem. The bench also asked about those who support gay marriage who are not gay – reference was made to the recent referendum in the South. Mr Allen said that wasn’t how he put the case and Ashers thought or believed Mr Lee to be gay and that was the objection. (This is my view was not the case on the evidence). Mr Allen argued that whether or not he was gay or straight, support of same sex marriage is a statement of association with gay community and that is enough for discrimination.
Another interesting day in this complex and important case.