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09 May 2016

Ashers appeal: will justice be done?

Ashers appeal: will justice be done?

On Monday morning, Ashers Baking Company will appear before the Court of Appeal seeking to overturn a decision by the County Court which found against them. It will be two years to the day since the infamous 'gay cake' was ordered, and it is surely time justice was done - forcing individuals to promote a cause they disagree with is neither fair nor free. In a sign of the importance of the case, the Attorney General will be appearing to challenge the very laws under which Ashers was found guilty.

The McArthur family (who own Ashers) have built up a successful family business. Gareth Lee asked Ashers bakery to make a cake with the slogan 'Support Gay Marriage' on it. Mr Lee had used the bakery before, and the company was, and remains, happy to serve him. However, the family were not happy to promote a view contrary to their religious beliefs. As Ashers' barrister said time and again during the original hearing: "It was the content of the cake, not the characteristics of the customer, that were critical to their decision."

The McArthurs gave clear evidence that they did not know the sexual orientation of the customer and Mr Lee acknowledged he had been served before by the company. Despite this, the County Court judge found that: "The McArthurs must have known or perceived that Mr Lee was gay or associated with others who were gay." This is quite incredible – the judge has concluded that she knows the minds of the McArthurs better than they do. Surely the law is on shaky ground when it begins to speculate what people think and who they associate with?

The judge went on to say: "Support for same-sex marriage was indissociable from sexual orientation." The reality is that the vast majority of people who support same-sex marriage are heterosexual. The company would not have made this cake for anyone, gay or straight. They discriminated against an idea, not a person, and this distinction is important. You are allowed to do the first - in fact it is critical in a healthy democratic society - but you are rightly not allowed to do the second.

The Attorney General has now intervened to challenge the lawfulness of the legislation at the centre of the case. He will argue that the Sexual Orientation Regulations directly discriminate against those who hold certain religious beliefs or political opinions. Northern Ireland's chief legal advisor is questioning whether the law itself discriminates against the McArthur family and others. 

The Equality Commission, which actively supports same-sex marriage, has backed Mr Lee, spending tens of thousands of pounds of taxpayers' money on the case. The Commission also has a duty to protect people from discrimination on the grounds of their religious beliefs. However, there is a new social orthodoxy in relation to same-sex marriage and it appears dissent will not be tolerated. Equality is important, but it flows from the much richer notions of freedom and justice. This case is about how far the state can go in forcing someone to act against their fundamental beliefs.

If this appeal is lost, freedom of conscience and religion will effectively be banished from the public square for everyone here. This is not about special protection for Christians. The concern is that the Equality Commission will decide which political and religious views are acceptable and which are not. The Chief Commissioner has already said that Christians should, "either look at the law or maybe that (baking) is not the business they should be in". His suggested solution that Christians cannot be accommodated within the law in certain occupations is very worrying.

We must hope and pray that the Court of Appeal places a higher value on freedom and justice than the lower court did, or that it goes further and strikes down the legislation as discriminatory.