Now we know. The Supreme Court decided that Ashers Bakery’s refusal to bake a cake with the message “Support Gay Marriage” did not amount to discrimination on the grounds of sexual orientation. But what did the court actually decide and what are its implications for Christians?
Ashers Bakery is a Christian company in Belfast, owned by the McArthurs. Its website says: “Our name comes from the Bible. Asher was a tribe of Israel who had many skilled bakers and created bread fit for a king.” Gareth Lee initially enquired about ordering a cake with a logo on it, saying he was from a small voluntary group, but later produced a colour picture of the Sesame Street characters Bert and Ernie (the logo for QueerSpace) with the caption about gay marriage. The bakery refused to fulfil the order as it was a “Christian business”. It was accepted that Mr Lee did not know anything about the McArthurs’ beliefs about marriage and they did not know of his sexual orientation.
Discrimination is unlawful if it amounts to less favourable treatment of a person on certain protected grounds, including sexual orientation and religion. Lady Hale, giving the unanimous judgment of the Supreme Court, exposed the fallacy of the claim in this case: “There was no less favourable treatment because anyone else would have been treated in the same way … The objection was to being required to promote the message on the cake. The less favourable treatment was afforded to the message not to the man.”
A heterosexual person who had asked for this message on the cake would likewise have met with a refusal. But it would be wrong for Christians to claim this as a victory. Wrong because it would give the impression that we are in a battle with the gay community and wrong because it would misunderstand the nature of the case. There is a clear parallel with the case of Mr and Mrs Bull, who refused to let a room to two civil partners, Steven Preddy and Martyn Hall, because of their policy of letting double accommodation to heterosexual married couples only. This was held to be unlawful discrimination. Lady Hale pointed out that if Mr Preddy and Mr Hall were hoteliers who had refused Mr and Mrs Bull a room because they were Christians, this would also have been discrimination, this time on grounds of religion. The key to both cases is simple: was there less favourable treatment of a person because of a protected characteristic?
The judges in the Ashers Bakery case noted the recent US Supreme Court decision involving Masterpiece Bakery in Colorado, where the court distinguished between refusing to produce a cake conveying a particular message for any customer who wants such a cake, and refusing to produce a cake for the particular customer who wants it because of that customer’s characteristics. If Ashers Bakery marks a slight turning of the tide, will future decisions of the US Supreme Court be found to have had an effect, however marginal, especially with the changing composition of that court?
The Equality and Human Rights Commission prosecuted Bull v Preddy on behalf of the civil partners. In the Ashers Bakery case, the Northern Ireland Equality Commission supported Mr Lee, and their chief commissioner Michael Wardlow said the decision meant that “the beliefs of business owners may take precedence over a customer’s equality rights, which in our view is contrary to what the legislature intended”.
Where, then, are the equality rights of Christians? This is still the suspicion that in the scale of “protected characteristics” under the Equality Act the protection of religion ranks below sexual orientation, and it is time those bodies that are responsible for the operation of equality legislation took a neutral stance between, in particular, religion and sexual orientation.
John Duddington is the editor of Law & Justice – The Christian Law Review
This page is available to subscribers. Click here to sign in or get access.