The decision of the Northern Ireland Court of Appeal in the case of Lee v Ashers Bakery Co. is a defeat for Christians. But if we look at its implications and see the case in the context of the ongoing debate on how religious freedom should be protected, then there are reasons for hope.
The facts were simple. Gareth Lee made an initial general enquiry at Ashers Bakers in Belfast about ordering a cake. He said he was from a small voluntary group and wanted a cake with a logo on it. He was told that if he brought the logo in it could be scanned and put on the cake. There was no other discussion about the content of the logo or the nature of his group. As it turned out, Lee wanted the cake for a private event to mark the end of “Northern Ireland Anti-homophobic Week” and to mark the political momentum towards same-sex marriage legislation, which of course is not lawful in Northern Ireland.
A few days later he went back placed an order for a cake and produced an A4 sheet with a colour picture of “Bert and Ernie” (the logo for QueerSpace) with the headline caption, “Support Gay Marriage”. The bakery telephoned Lee indicating that the order could not be fulfilled as the bakery was a “Christian business”. Lee then claimed that this was discrimination against him under the Equality Act (Sexual Orientation) Regulations (NI) 2006. The courts have held that it was, as he received less favourable treatment on the ground of his sexual orientation.
The Northern Ireland Court of Appeal said that:
The reason that the order was cancelled was that the appellants would not provide a cake with a message supporting a right to marry for those of a particular sexual orientation. This was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community. Accordingly this was direct discrimination.
I expected this decision: as the law stands, the refusal of Ashers Bakery to bake the cake with the message was indeed discrimination against Gareth Lee. They provided a service to the public and refused to provide that service to him because of the association of the message with the LGBT community. The law is clear and the court had no choice for its decision.
So far this is bad news for Christians, but here is the silver lining: it is not just Christians who are now concerned about the extent to which the beliefs of Christians are ridden roughshod over by the law – and in particular have had to give way to the claims of the LGBT community. In fact, in the judgement itself there is some comfort for us: the court indicated that the Equality Commission, who supported Gareth Lee, should have provided advice to the bakery too.
Peter Tatchell, well-known as a campaigner for gay rights, said today that, although he believes that Ashers Bakery were wrong to refuse to bake the cake with the message, nevertheless “This verdict is a defeat for freedom of expression … It seems that businesses cannot now lawfully refuse a customer’s request to propagate a message, even if it is a sexist, xenophobic or anti-gay message and even if the business has a conscientious objection to it.”
Lady Hale, Vice President of the Supreme Court, asked in a lecture at Yale University in 2014: ‘would it not be a great deal simpler if we required the providers of employment, goods and services to make reasonable accommodation for the religious beliefs of others?’ Meanwhile, the All Party Parliamentary Pro-Life Group in its report in July 2016 on Freedom of Conscience in Abortion Provision suggested a general right of reasonable accommodation of religious belief.
Will the Ashers Bakery case be the low point? Is the tide turning? Perhaps from here we can build a consensus reaching well beyond Christians that the law should be changed and religious belief should be given reasonable accommodation while at the same time respecting the rights of others. After all, Mr. Lee easily got another Belfast baker to bake his cake with the message on it – while the Ashers were fined £500. Can this be right?