‘Gay cake’ case legal muddle

By Savi Hensman

November 6, 2014

Marriage equality is a worthy cause, and UK laws rightly ban discrimination on grounds of sexual orientation. But a legal case by the Equality Commission for Northern Ireland against a bakery unhelpfully confuses different issues.

The Equality Commission is a statutory body which oversees equality and discrimination law in Northern Ireland. It is taking Ashers Baking Company to court, alleging unlawful discrimination.

In what is sometimes called the ‘gay cake’ case, the bakery had refused to make a cake bearing the slogan “Support gay marriage”, with pictures of the characters Bert and Ernie from the television programme Sesame Street.

Though the law has changed in England, Wales and Scotland to allow same-sex as well as opposite-sex couples to marry, as happens in many other countries, the Northern Ireland government is lagging behind.

Ashers is run by Christians who disagree, on religious grounds, with letting same-sex couples marry. After a complaint was made to the Commission, it wrote to the company’s lawyers, who argued that it had not broken the law.

The bakery is now being taken to court. “This case raises issues of public importance regarding the extent to which suppliers of goods and services can refuse service on grounds of sexual orientation, religious belief and political opinion,” stated the Equality Commission in a news release.

I am generally a strong supporter of equality legislation and have campaigned for over thirty years to strengthen protection against homophobic discrimination. I also disagree with the theological stance of Ashers’ owners and support equal marriage largely because I am a Christian.

I have also been hesitant to comment on this case because I live in England. But it has implications for the rest of the UK and indeed across Europe. I have grave misgivings about the Equality Commission’s action, which I believe is unjust and could hand a legal victory to opponents of equality for all such as the Christian Institute, which is backing the bakery.

To begin with, there is a marked difference between discriminating on grounds of sexual orientation and political belief. This case is about the latter: refusal to assist in pushing for a particular law to be changed.

Many people back this change as part of a wider drive to achieve full equality for lesbian, gay, bisexual and transgender (LGBT) people. I think they are right. But many heterosexual people want same-sex couples to be allowed to marry, while some LGBT people (a number of whom are in civil partnerships) believe that ‘marriage’ is a term more appropriately used for opposite-sex couples.

It would be deeply unchristian, and rightly unlawful, for a bakery to refuse to bake someone a birthday cake because he or she was LGBT, or because of that person’s ethnicity, faith and so forth. In countries with marriage equality, it might well be unlawful to offer wedding cakes to opposite-sex but not same-sex couples.

But forcing service providers to use their skills to promote a particular ideological stance is a completely different matter. I am uncertain whether the Commission believes this applies to all political views, so that a staunchly Republican printer should be compelled to design and print Loyalist campaign leaflets and vice versa, or just those it favours. However there are serious implications.

It may also trigger a backlash against equality. Current laws against discriminating against certain categories of people may sometimes be uncomfortable to put into practice but should mean that everyone is treated fairly.

For example a hospital porter, even if he is an atheist with strong objections to religion, might be asked to wheel a patient to the chapel on a Sunday so that she can worship. This is different from demanding that an atheist musician be compelled to play at a Christian revivalist event aimed at ‘winning souls for Jesus’.

It might also be perverse if, after one branch of the state refused to bring in marriage equality, another branch penalised private citizens for not backing a campaign against this decision.

I expect many pro-LGBT rights activists would disagree strongly with me and would want to bolster the power of governments and public bodies to override any objections to full equality in all walks of life. But there are good reasons why freedom of expression and also freedom of religion and belief are core human rights.

States can sometimes uphold justice for the disadvantaged but at other times trample minority rights and abuse their power. It is important that there are some aspects of human life that they do not control, even if this means that people sometimes get things wrong.

Also, applying the Gospel principle of treating others as I would wish to be treated myself, I would be upset if someone sued me for not agreeing to copy-edit a book which I felt attacked principles dear to my heart or some aspect of my own identity.

Change which arises from persuading people is also more durable than that based on coercion. I hope the bakery managers come to see the value of equal marriage, but this case seems likely to do more harm than good.

-------

© Savitri Hensman is a widely published Christian commentator on politics, welfare, religion and more. An Ekklesia associate, she works in the equalities and care sector.