Ashers ‘gay cake’ win is no loss for LGBT rights

By Savi Hensman
October 11, 2018

The Supreme Court has decided that Ashers Bakery in Northern Ireland did not discriminate by refusing to make a cake iced with the slogan ‘Support Gay Marriage’. While some pro-equality activists are disappointed, others are relieved.

In 2014 Gareth Lee ordered the cake, on which he also wanted a picture of Bert and Ernie, characters from the television show Sesame Street. When the bakery, owned by Christians with ‘conservative’ views, refused, he took them to court, backed by the Equality Commission for Northern Ireland.

Ashers lost the case in 2015 and an appeal in 2016. But this was overturned, in a victory for freedom of speech. This is a key aspect of human rights, which ultimately benefits lesbian, gay, bisexual and transgender (LGBT) people and pro-equality campaigns. Treating everyone equally is very different from forcing people to promote political views with which they strongly disagree.

“This verdict is a victory for freedom of expression. As well as meaning that Ashers cannot be legally forced to aid the promotion of same-sex marriage, it also means that gay bakers cannot be compelled by law to decorate cakes with anti-gay marriage slogans”,  said human rights and equal marriage campaigner, Peter Tatchell.

As a lesbian who also campaigns for same-sex couples to be allowed to marry, I agree. As I pointed out in 2015 and 2016 , Ashers had not discriminated on grounds of sexual orientation.

The Supreme Court judgement on 10 October 2018 confirmed this. To quote the press summary, “The objection was to the message on the cake, not any personal characteristics of the messenger” and “support for gay marriage was not a proxy for any particular sexual orientation. The benefit of the message accrues not only to gay or bisexual people, but to their families and friends and to the wider community who recognise the social benefits which such commitment can bring.”

Unlike in other parts of the UK, Northern Ireland also forbids discrimination on political grounds, in the Fair Employment and Treatment (Northern Ireland) Order 1998. This “prohibits discrimination and harassment on sectarian grounds by employers and service providers, including public authorities”, in the words of a 2011 briefing by the Northern Ireland Human Rights Commission.

As the press summary explained, “Protection against direct discrimination on grounds of religious belief or political opinion has constitutional status in Northern Ireland… As the appellants’ objection was not to Mr Lee, but to being required to promote the message on the cake, the situation was not comparable with people being refused jobs or services simply because of their religious faith, but it was arguable that the message was indissociable from Mr Lee’s political opinion.”

This meant that human rights set out by European Convention were relevant, in particular “The rights to freedom of thought, conscience and religion (article 9) and to freedom of expression (article 10)… They include the right not to be obliged to manifest beliefs one does not hold. The McArthurs could not refuse to provide their products to Mr Lee because he was a gay man or because he supported gay marriage, but that was different from obliging them to supply a cake iced with a message with which they profoundly disagreed.”

If Ashers had indeed acted unlawfully, people in Northern Ireland at least could be forced to produce propaganda for causes they detested. This might include praising brutally anti-LGBT regimes, for instance, or promoting fox-hunting, complete with graphic images of foxes being torn apart.

Meanwhile it would have been easier to argue that anti-discrimination legislation was at odds with respecting religious beliefs and basic freedoms. This would have weakened the cause of justice for all. In fact, the law could have meant that a heterosexual person keen on equal marriage could have taken someone gay or lesbian to court, if this went against their beliefs.

As the judgment put it, “It is deeply humiliating, and an affront to human dignity, to deny someone a service because of that person’s race, gender, disability, sexual orientation or any of the other protected personal characteristics. But that is not what happened in this case and it does the project of equal treatment no favours to seek to extend it beyond its proper scope.”

Indeed, internationally, weakening human rights in this 70th anniversary year of the Universal Declaration would leave many LGBT people and other minorities at greater risk. Freedom of expression tends to favour just causes for which strong arguments can be made – and which people of faith might describe as in tune with the Divine or the highest principles.

Being unable to demand a ‘gay cake’ is no great loss, whereas basic freedoms are worth defending.

© Savitri Hensman is an Ekklesia associate and respected commentator on welfare and other issues. She is author of the book Sexuality, struggle and saintliness: same-sex love and the church (Ekklesia, 2016): http://www.ekklesia.co.uk/node/22613 and has been involved in seeking greater inclusion. She wrote on ‘Health or Wealth?’ in Feast or Famine? (http://dltbooks.com/titles/2195-9780232532616-feast-or-famine)

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