The UK Supreme Court issued its ruling in Lee v. Ashers on October 10, a case from Northern Ireland that has attracted widespread attention. In May 2014, Gareth Lee, a gay rights activist, involved with QueerSpace, an organisation for the LGBT community in Northern Ireland, ordered a cake from Ashers bakery in Belfast. He asked for the cake to be decorated with the message “Support Gay Marriage”, to mark the International Day Against Homophobia and Transphobia. Amy and Daniel McArthur, who ran the bakery, refused – citing their religious opposition as evangelical Christians to gay marriage.
Lee took the bakery to the Northern Ireland County Court. It upheld his complaint, awarding him £500 damages from Ashers, a ruling subsequently upheld by the Court of Appeal. Now the Supreme Court has reversed that decision, ruling that Lee was not discriminated against.
Lee v. Ashers is not the only case where the religious liberty of Christians has come into conflict with the rights and interests of gay and lesbian people. In Bull v. Hall (2013), the UK Supreme Court upheld the complaint of a gay couple who had been refused a double room by a Christian couple who ran a bed and breakfast. By contrast, in Phillips v. Craig and Mullins (relevant because it considered many of the same issues), the US Supreme Court in June 2017 June sided with a baker who told a gay couple that he would not supply a cake for their forthcoming wedding.
In Lee v. Ashers, Lady Hale, who wrote the Supreme Court’s judgment, reiterated the moral and legal case against discrimination against people on grounds of sexual orientation. In her words, to deny someone a service because they are gay is “deeply humiliating, and an affront to human dignity” (paragraph 35). However, in the court’s view, the McArthur’s objections were to the message on the cake, not to Lee himself, so there was no discrimination.
The court considered whether Lee’s sexual orientation, as a gay man, was “disassociable” from the message on the cake, and concluded that it was. Lots of people – gay, straight and bisexual – support gay marriage, the court pointed out, and hence a message in favour of it was not a proxy for any particular sexual orientation.
Is that correct? While support for gay marriage is not a proxy for a person being gay, many gay and lesbian people do identify – and perhaps uniquely identify – with the cause of same-sex marriage, so there is a strong association for them at least.
But what of the bakery owners’ religious beliefs? Article 9 of the European Charter of Human Rights (ECHR), to which the UK is a signatory, gives individuals the right to freedom of thought and to manifest their religion “in worship, teaching, practice and observance”. In another high profile case from 2013, the European Court of Human Rights, for example, ruled in favour of Nadia Eweida, a Christian British Airways employee who wore a cross around a chain at work, in contravention of BA’s uniform policy at the time.
Interestingly, the court did not consider at any length whether the McArthur’s freedom of religion was involved. This might be because refusing to bake a cake with a particular message is not obviously a case of manifesting one’s beliefs, unlike wearing a cross. By contrast, in the Phillips v. Craig and Mullins wedding cake case, the US Supreme Court explicitly defended Phillips on the basis of his freedom of religion, a right the American court has historically interpreted with a great deal of latitude.
In Lee v. Ashers, the court also considered Article 10 of the ECHR, the right to freedom of expression. According to the Court, Article 10 also involves the right not to speak – the point being that if the McArthurs were legally required to decorate a cake with the message “Support Gay Marriage”, they would be compelled to promote a message with which they profoundly disagreed. As McArthur stated during the original case at the County Court:
We could not promote same-sex marriage because it is against God’s word.
When cakes can speak
The human rights campaigner, Peter Tatchell supported the Supreme Court’s position on this, pointing out that the ruling also implied that gay bakers cannot be compelled by law to decorate cakes with anti-gay marriage slogans. That is not merely a fanciful hypothesis. In the Phillips case, the US Supreme Court compared his refusal with a number of bakers in Colorado that turned down a man’s request to decorate a cake with the message “Homosexuality is a detestable sin. Leviticus18:22”.
The issue is not merely that this message was offensive; it was also an attempt to use another person to spread one’s own views. In protecting the McArthur’s from compelled speech, the UK Supreme Court demonstrated a characteristically liberal concern with the value of individual conscience.
By contrast, Lee reported to the County Court that he felt he was treated as a second class citizen by Ashers’ refusal, a statement he repeated after the Supreme Court’s decision.
In 2014, and still today, same-sex marriage is not legal in Northern Ireland. Consequently, there is also the wider issue of the public recognition of same-sex relationships.
So while the case will remain controversial for many, it has raised fundamental questions about the public place of religion, freedom of expression, the value of civic equality, and the rights of gay and lesbian people. Doubtless the ruling will be pondered and debated for many years to come.
Written by Jonathan Seglow, Reader in Political Theory, Royal Holloway