Ashers – a very costly cake

Much ink has been spilt over a £36.50 cake, not all of it accurate. I worked as a barrister for five years, I know two of the barristers involved and attended court for the original hearing and the appeal. I have also spoken to the family and the chief Equality Commissioner on a number of occasions over the last two years. This post looks at 5 aspects of the case.

(The video below is 10 minutes long but covers most of this post)

1. The Case

So what is the case really about? (There is a summary in bold at the end of this section for those less interested in the law)

The Facts

The McArthur family, who own Ashers bakery, run a successful family business. Gareth Lee, a gay rights activist, asked Ashers bakery to make a cake with the slogan ‘Support Gay Marriage’ on it. Ashers were happy to sell Mr Lee a cake, but not to promote a view contrary to their firmly-held religious beliefs. They ultimately declined the order. (It was initially accepted, before Ashers phoned Mr Lee to explained they could not fulfil it. The parties essentially agreed that this was not a breach of contract case). Mr Lee went to the Equality Commission who supported his claim alleging discrimination. The Christian Institute supported Ashers Bakery. At first hearing in the County Court, Ashers bakery was found to have discriminated against Mr Lee on all three grounds of the claim – sexual orientation, religious belief and political opinion. The Attorney General intervened in the Appeal case raising issues about the ECHR compatibility of the very legislation on which the initial findings were made. On the 24th October the Northern Ireland Court of Appeal affirmed the decision of the lower court.

Sexual Orientation

Sexual orientation was definitely relevant but arguably not the core of the case. The McArthurs gave clear evidence that they had served Mr Lee before and would do so again. The Equality Commission argued that it would have been discrimination even if a heterosexual person had ordered the cake. There are two important legal points relevant here and there was significant disagreement at court about these.

First, was the question of the comparator. For someone to have been discriminated against, they have to have been treated less favourably based on a protect characteristic (in this case sexual orientation), than someone without that protected characteristic. So Ashers argued that the comparator is a heterosexual person ordering a cake with the slogan ‘support gay marriage’. Would the plaintiff have been provided the cake ‘but for’ his sexual orientation. The answer was clearly no.That seems pretty straightforward as Ashers would not have served anyone a cake with that message and therefore there was no discrimination – they didn’t treat one class of people differently than another.

The Judge at the lower court ruled that the correct comparator is a heterosexual person placing an order for a cake with the graphics either “Support Marriage” or “Support Heterosexual Marriage.” Note the judge has changed both the person and the message to make this work. So Ashers would have made this cake but not the one for Mr Lee and so, he was treated differently and in her view less favourably.

Secondly, the Judge at the lower court argued that this was a case of associative discrimination. Here is how ACAS explains this concept:

“Associative discrimination comes about when someone is treated unfavourably on the basis of another person’s protected characteristic.

For example, a candidate who has been told she is getting a job is suddenly deselected after revealing she has a severely disabled child with complicated care arrangements. The withdrawal of the job offer could amount to discrimination because of her association with a disabled person (disability being a protected characteristic).”

The judge concluded that support from same sex marriage was indissociable from sexual orientation. This despite the fact that the majority of people who support same sex marriage are heterosexual. The Office of National Statistics found that 1.3% of the population is LGB and yet some polls suggest the majority of people might support same sex marriage, while of course, some within the LGB community oppose same sex marriage.

The Court of Appeal ruled that “the benefit from the message  or slogan on the cake could only accrue to gay or bisexual people.” This contrary to the comments of many who support gay marriage and argue that it will benefit everyone in society. This combined with the selection of a very strange comparator and the extension of associative discrimination to an idea are troubling. Judges are interpreting the law far beyond what was originally intended.

Compelled speech

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.” The Attorney General noted in his submissions that, “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 court disagreed, finding making this cake showed no more support for the slogan than making a cake with the logo of a particular football team. This analogy seems so obviously flawed, that it is barely worthy of further comment.

Religious Belief

The judges, both below and on appeal, do not seem to understand the role in faith in worship. The McArthurs and many of their staff are Christians who understand their work to be an act of worship to God. There Hebrew word ‘avodah’ means both work and worship, wonderfully fusing the two ideas. The courts have sought to restrict worship to religious services but the Bible is explicit that Christians are to do everything in service to God. This ruling fails to properly wrestle with the role of faith in the modern workplace.

The McArthur’s barrister argued that using their religion agains them was an unwarranted extension of the law (FETO) that was designed to protect the belief of the customer or employee. Mr Lee’s beliefs were not relevant to the decision to produce the cake – they were and remain unknown.

If that argument failed, then their freedom of religion under Articles 9 & 10 of the European Convention of Human Rights came into play. However Judge Brownlee found that “what the respondent wanted the appellants to do would not require them to promote or support gay marriage which was contrary to their deeply held religious beliefs”. She went on to find that, in any event, the anti-discrimination provisions in the relevant legislation were a proportionate interference permitted under Article 10(2) of the ECHR. The issue of conscience is notoriously hard to legislate around because it is so personal but here we have a Judge telling people what would and would not constitute them promoting or supporting same-sex marriage.The Appeal Court simply affirmed this.

Political Opinion

My own view was that this was always going to be the hardest ground for Ashers to win on once it was established that the slogan was a political opinion. Remember the Equality Commission themselves did not raise this in their initial letter of claim. This was only added once a top London QC became involved – so to me it seems disingenuous for the Commission to claim this is a common sense ruling.

The legislation on political discrimination (The Fair Employment and Treatment (NI) Order 1998) is unique to Northern Ireland. It was introduced in our specific context to give extra protection against sectarianism in employment and the provision of goods and services. It is always important to look at the intention behind any given law. Ashers argued that the application of the 1998 order, in this instance and on this set of facts, was far removed from its original intention to reduce sectarianism around the time of the Good Friday Agreement.

The presumption of many was that the McArthurs’ own political views, against redefining marriage and their religious views should protect them. This law was designed to protect people with differing political views, not the views themselves. It was not designed to force people to further political views to which they consciously object. The interpretation of the courts on this point is a further worry.

So in summary, to make this case work the court has had to engage in some interpretive gymnastics. The court would normally compare how a heterosexual customer was treated ordering the same cake, but here the judges compared a different customer and a different cake. And the law which would include discrimination of other people associated with a gay person, has now been interpreted to include those associated with the very idea. The law is extremely reluctant to compel speech and so ruled that icing a cake wasn’t speech and that writing this slogan was no different supporting a football team. The ruling dehumanises work, saying you can of course have your religious beliefs, just don’t try to manifest or live them out at work. Finally, a law designed to protect people with differing political views, now protects the views themselves.

So can a wedding photographer refuse to take photos or musicians decline to play at a same sex ceremony? No, they must use their creative talents to ‘celebrate’ this event. Can a printer refuse to print a leaflet promoting abortion services? No, unless they have a policy saying they won’t do any political work which could be a major limitation on their business. Can a Muslim website designer refuse to design a church website? No, unless they have a policy saying they won’t do any religious work, but this is highly restrictive as almost everything is informed by a set of beliefs. 

2. The Commission

The Equality Commission’s first engagement with Ashers was a letter saying “we have advised Mr Lee that you have acted unlawfully . . . This letter constitutes a letter of claim in consequence of which we look forward to receiving your proposals to remedy your unlawful discrimination against Mr Lee within seven days of the date of this letter failing which proceedings will issue before the County Court without further notice to you.”

The Court of Appeal were critical of the Commission for not offering Ashers advice and assistance noting, “The only correspondence to the appellants we have seen, however, did not include any offer of such assistance and may have created the impression that the Commission was not interested in assisting the faith community where issues of this sort arose.” This is important because the Commission can and do offer advice and assistance in advance of any complaint. But the Chief Commissioner has been very clear that once a complaint has been made they have no mandate to mediate and he will not be seeking a change to enable the Commission to do so.

It has been suggested by many that case should have not have come to court and could have been settled. The only basis on which this was possible was if Mr Lee agreed to withdraw his claim or if Ashers admitted unlawful discrimination. Neither of those options are a settlement on any meaningful definition.

I believe that if the Commission had approached Ashers and said we think there might be discrimination here but this is a complex area of law. (Remember the Commission’s own expert lawyers only claimed one ground initially before adding more grounds after advice from a  leading London QC). Had they asked Ashers to adopt a clear policy on what cakes they would and wouldn’t produce going forward, and perhaps even apologise to Mr Lee for any upset, without legal admission of fault, the matter could quite possibly have been resolved. The Commission, through the Chief Commissioner seems to be saying that they do not have the power to do that, and don’t want that power.

The policy point is important as the Commission and the Courts seem to expect small business to have teams of lawyers working on policies to cover every eventuality. It is now clear that had Ashers had a carefully worded policy they might have been protected – 2020 hindsight is a great thing.

3. The Costs

The real costs are being paid by the McArthur family and no doubt Mr Lee because they are much more personally involved in this – it is not just a cake, its their lives. That said we are all paying for this, as this ruling restricts the freedom of everyone.

The Equality Commission is publicly funded and so all taxpayers support their work. The Christian Institute is helping support Ashers, so many of us are paying of both sides in this case. At the lower court, costs were kept to a minimum as the claim is only for £500 and there was agreement that both sides would bear their own costs. Following the Appeal, the Commission has sought costs, estimated to be £88,000 for their side alone, from the McArthur family. The court has yet to hear submissions on costs so a final outcome isn’t know and would be deferred if there is to be an appeal.

While costs going to the winning side is not unusual, the change in tone from the Commission’s approach at the lower court is notable. This makes it prohibitively expensive for many to challenge the view of the Commission which is problematic. The risk of having to pay all costs will also be a factor for the Ashers side as they consider an appeal. Justice is not well served when costs become a key consideration for a party in a case with significant ramifications such as this one.

4. Coalitions

‘Something is rotten in the state of Denmark’ Shakespeare might have said when Peter Tatchell, the Telegraph, The Guardian, The Independent, The Belfast Telegraph and the Newsletter are all agreed in their criticism of this decision.

Tatchell is to be commended for his courage and clarity of thought. “Ashers did not discriminate against the customer, Gareth Lee, because he was gay. They objected to the message he wanted on the cake: ‘Support gay marriage.’” He argued that the judgment opens a can of worms –  should Muslim printers be obliged to publish cartoons of Mohammed? Or Jewish ones publish the words of a Holocaust denier? Or gay bakers accept orders for cakes with homophobic slurs? He pulled no punches, “What the court has decided sets a dangerous, authoritarian precedent that is open to serious abuse. . . Discrimination against people should be illegal but not discrimination against ideas and opinions.” It is worth reading it all.

Patrick Stewart the actor and gay rights activist has also supported the bakers over concerns about compelled speech. Christians are not persecuted in the UK. There are many places in the world were people are persecuted for their sexual orientation or their faith. We should all work together to end this.

5. Consequences

The judges in the Court of Appeal specifically mentioned that those from the faith community should be active in commerce and “that there should be no chill factor to their participation.” The very fact they felt the need to mention this in Northern Ireland shows that they realised the significance of their ruling.

We appear to be entering concerning territory where freedom of conscience is diminished and forced speech is compelled. As Daniel McArthur himself observed: “If equality law means people can be punished for politely refusing to support other people’s causes then equality law needs to change.” Pharmacists can refuse to supply the morning after pillow for conscience reasons as long as they can direct the customer to another pharmacy that is open and will serve them. The law already has a place for conscience and there will be renewed calls for legislators to think again about how to protect deeply held religious views. Northern Ireland also has special provisions protecting political opinion that do not exist elsewhere in the UK. Has the situation here not changed sufficiently to remove these?

We must remember that, ‘the price of liberty is eternal vigilance’. As the government struggles to draft extremism legislation, it moves from banning hate speech, to outlawing offence, to creating safe spaces. But who decides what is offensive, or safe? As Christians, we have not always used our power well on behalf of the other and we must acknowledge that. We must now help build a more creative and generous community in which we accommodate each other’s beliefs and fundamental freedoms. This case may not mark the death of the canary in the free-speech mine, but is it just me or is it harder to hear the singing?

Going Forward

Our role as Christians is to seek the shalom of the place in which we find ourselves in exile. Eugene Peterson defines shalom as “seeking the dynamic vibrating health of a society that pulses with divinely directed purpose and surges with life transforming love.”

Speak up graciously – As Christians we cherish the freedoms of everyone. Words matter, especially to people who believe that God spoke the world into being and who worship Christ who describes himself as the Word. We speak courageously and with grace. The case has shaken things up. It has strangely united more conservative Christians with liberal atheists on the issue of free speech. Ironically this has left some self-professed liberal Christians in limbo, a little embarrassed and confused by the whole thing. There is a perception that Christians should forget about all of this and just be quiet. We speak because these things matter to everyone. Check out our Speak Up resource which reminds us of the incredible freedoms we have to talk about Jesus in the workplace.

Be kind – This case is not just about freedom and speech, religious and political freedom but it also has serious implications for how we treat one another in contemporary society. It is deeply ungenerous to compel someone to produce something which affronts their beliefs, and it is not any more morally justifiable because the law says you can do so. But we must respond to this intolerance with the unmerited kindness we have been shown by Christ. While we have said Christians need to be prepared to speak, we also need to listen and to go about quiet acts of kindness and generosity which speak in their own way about the love of Christ. It is not words or actions but both together.

Be a Blessing – I believe that the McArthur family acted as they felt compelled to by their faith, graciously declining an order supporting something sinful. They have conducted themselves with dignity throughout. I pray that they will be blessed for the stand that they have taken. But the sermon on the mount also challenges me to pray for Gareth Lee, that he too will be blessed.

When Jesus encountered the woman at the well, he met her with compassion, engaged with integrity, and moved towards redemption. The woman was so excited that she bought her friends to meet Jesus – we are always seeking these life changing encounters.

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