‘Let Them Eat Cake?’

The much anticipated decision handed down in Lee v Ashers Bakery Co Ltd was for some, viewed as delivering a slice of sweet justice to the gay rights movement. However, for many, the so-called ‘Gay Cake’ case left a bitter aftertaste. This blog post will explore the legal impact of this controversial judgment; a verdict reached against a backdrop of the changing mores of Irish society.

Key Ingredients

In 2014, Gareth Lee, a member of the group Queerspace and a gay rights activist, ordered a cake for a special event to mark Anti-Homophobic Week. Lee’s order for a cake iced with the slogan ‘Support Gay Marriage’ alongside the Sesame Street characters, Bert and Ernie, was cancelled notwithstanding the fact it had been fully paid for. The proprietors of Ashers Bakery, the devoutly Christian McArthur family, refused to fulfil Lee’s order. The family argued that the cake’s slogan was directly at odds with the Bible’s teachings. In a ruling that was upheld by the Court of Appeal in Belfast in October of this year, it was held that Ashers Bakery had discriminated against a customer on the grounds of sexual orientation contrary to the Equality Act (Sexual Orientation) Regulations 2006. The McArthur family were ordered to pay Lee £500 in damages. In November 2016, Northern Ireland’s Attorney General John Larkin, applied for leave to appeal this decision to the UK Supreme Court.

A Recipe for Change?

An arresting aspect of this legal battle is the unavoidable sympathy felt for Gareth Lee, who testified that his dealings with Ashers Bakery made him feel like a ‘lesser person’.[1] The plight of the LGBT community cannot be disregarded. Disturbingly, homosexuality was still deemed a criminal offence in Northern Ireland a mere thirty-three years ago, as such, an undeniable desire not to regress to these oppressive days underscores the judgment. A dispute revolving around a cake, bearing the smiling faces of much-loved childhood characters may seem trivial; yet, for many of the LGBT population, the verdict symbolises another progressive step towards the true social and legal equality they so desperately strive for. Northern Ireland remains the only region of the United Kingdom where same-sex marriage has not been legalised. The finding that Ashers Bakery had acted in contravention of the Equality Act was delivered just days before the Republic of Ireland made history by voting in favour of the legalisation of same-sex marriage. At first glance, this clear judicial assertion that discrimination on the grounds of sexual orientation would under no circumstances be tolerated appeared to be the icing on the cake for a community who were once the ‘sexual outlaws’of this island.[2] However, the outcome of this case proved difficult to digest, sparking outcry on a national and international stage.

The Cake or the Customer?

The ruling in the ‘Gay Cake’ case is not unprecedented. The judgment is reminiscent of the recent decision in Bull v Hall. Mr and Mrs Bull were found to have discriminated against civil partners Mr Preddy and Mr Hall, when they refused to honour the couple’s booking for a double room in their hotel. The Bulls claimed that such rooms were reserved for ‘heterosexual married couples’ only, to uphold their religious beliefs in the sanctity of marriage between a man and a woman. The hoteliers argued that they had not discriminated against the men on grounds of sexual orientation but rather because they were unmarried. The Bulls asserted that an unmarried heterosexual couple would have received identical treatment. Conceding that such a hotel policy amounted to indirect discrimination, the Bulls contended that this was permissible because of their right to freedom of religion. The UK Supreme Court took a different stance. A majority of the Court determined that the Bulls’ denial of providing a service to civil partners because they were unmarried amounted to direct discrimination. Furthermore, it was noted that the legislation prohibiting service providers from treating civil partners less favourably did not amount to disproportionate interference with an individual’s rights under Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; to manifest their religion without unjustified limitation by the State.

The issues arising in Bull v Hall are comparable to those surfacing in Lee v Ashers Bakery Ltd. In Bull v Hall, the hoteliers’ refusal to honour the plaintiffs’ booking was not, they contested, based on the couple’s homosexuality. In Lee, the McArthur family were adamant that their refusal to complete Gareth Lee’s order was not because of his sexual orientation, pointing out that they had served him in their bakery before and would welcome him again in the future. Both parties instead displayed an unwillingness to stray from the teachings of Christianity. This defence was, in both instances, staunchly rejected by the bench. The question remains however, as to whether the Court’s rejection was well-founded or whether it amounts to an unsettling derogation of individuals’ rights to freedom of expression and religious practice.

The Aftertaste

The decision in the ‘Gay Cake’ case was met both with disdain and exultation. Support for the actions of the McArthur family emerged from the most unlikely of places. Peter Tatchell, a leading Gay Rights Activist and the director of the human rights organisation the ‘Peter Tatchell Foundation’ condemned the ruling. Notwithstanding Tatchell’s tireless efforts to gain recognition for LGBT rights, he asserted ‘Ashers Bakery’s defeat is no win for the LGBT community- it sets a dangerous and authoritarian precedent.’[3]  Further solidarity for the defendants was offered by the Attorney General for Northern Ireland, John Larkin, who also expressed his disappointment with the ruling. Larkin claimed that a problem of ‘coerced expression’ worryingly comes to the fore in this case. He firmly asserted his views inside the courtroom; ‘The wrong occurs, and can amount to cruelty, to make someone say something fundamentally at variance with their political opinion or religious views.’ [4]

Objections to the finding of discrimination on the grounds of sexual orientation continued. The common thread running through this dissent was that even if you believed the McArthur family’s refusal to be bigoted or archaic, individuals should have the right to peacefully adhere to their religious beliefs. The question remains as to what the legacy of this divisive decision will be? Under the auspices of this ruling, will the law compel a Jewish baker to decorate his cakes with swastikas? Will a homosexual baker be forced to produce cakes with homophobic slogans? A pro-life baker coerced into icing cakes campaigning for choice? Was such a societal stranglehold envisaged when the judiciary crafted their judgment? Arguably, the ruling in the ‘Gay Cake’ case was a somewhat knee jerk reaction, a well-meaning, but clumsy attempt by the bench to support Gay Rights, without fully comprehending the suffocating precedent they were about to set.

The sound reasoning of the Court cannot, however, be wholly disregarded. The fact that Ashers Bakery had entered a contractual agreement with Lee which they subsequently abandoned, was a prevailing factor in the making of the Court’s decision. Crucially, it was raised that Ashers Bakery could have legitimately refused Lee’s offer if they had limited their services to providing birthday cakes or cakes for other specific occasions. The bakery had in their terms and conditions, already excluded themselves from having to decorate cakes with rude words or sexual imagery. Yet, the terms and conditions were silent with regards to political slogans. Dr Michael Wardlow, Chief Commissioner of the Equality Commission for Northern Ireland was resolute, stating that Christians must recognise they are not ‘…the only people who hold strong values’ and cannot expect special ‘exceptions’ from discrimination law.[5] Underscoring this rather uncompromising outlook, is the view that owners of businesses who experience conflict between their ability to serve the public equally and their belief system, must be prepared to make financial sacrifices. Thus, Ashers Bakery should have legally exempted themselves from preparing cakes for events other than for example, birthdays and christenings. Yet, it is arguable that Wardlow’s statement, although headline-grabbing, essentially fails to address the essence of this legal challenge. This case should not be framed as a battle between the value systems of Christians and the LGBT community, as the Commissioner’s address suggests. Instead, this legal row is noteworthy as it raises complex questions stemming from the rights to freedom of expression and religious practice and their interaction with the laws prohibiting discrimination.

Food for Thought

Undeniably, the case of Lee v Ashers Bakery Ltd set a controversial and ground-breaking precedent. The outcome of the litigation sparked debate on the contentious question; To what extent can our rights to freedom of expression and religious practice be curtailed to prevent discrimination?  The deputy president of the UK Supreme Court, Baroness Hale, voiced her uncertainty as to whether the law has found a way to strike a ‘reasonable’ balance between accommodating individual’s rights to abide by their beliefs while also protecting others from discrimination.[6] Some hold that the decision reached by the bench in Northern Ireland is undoubtedly correct and imparts a powerful message to society; that one’s belief system or faith cannot fend off the legal consequences of discriminatory actions. For others, the outcome of the ‘Gay Cake’ row is a ‘defeat for freedom of expression’.[7]

Reports of a member of the historically ostracised gay community emerging victorious from the courtroom should not be used as a method of sugar-coating the stark consequences this judgment may have. Our ability to consent, to refuse and to stand up for what we believe in may prove diluted under the auspices of this lone ruling. The McArthur family has set its sights on the UK Supreme Court where they hope to have the Court of Appeal’s findings overturned. The legal world awaits to witness the impact and future interpretation of this judgment. Application of this decision will invariably be far from ‘a piece of cake’.

[1] http://www.irishtimes.com/news/ireland/irish-news/gay-cake-case-bakers-could-not-sin-by-going-against-conscience-1.2640761.

[2] http://www.irishtimes.com/culture/books/ireland-says-yes-the-inside-story-of-how-the-vote-for-marriage-equality-was-won-book-review-1.2411456.

[3] http://www.irishtimes.com/news/crime-and-law/ashers-bakery-loses-bert-and-ernie-gay-cake-appeal-1.2841186.

[4] https://www.theguardian.com/uk-news/2016/oct/24/gay-cake-row-court-of-appeal-belfast-judgment.

[5] http://www.telegraph.co.uk/news/2016/10/28/gay-cake-case-christians-cannot-claim-special-exceptions-from-la/.

[6] http://www.bbc.com/news/uk-northern-ireland-32791239.

[7] http://www.petertatchellfoundation.org/ashers-gay-cake-verdict-is-defeat-for-freedom-of-expression/.