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31 October 2016

Ashers appeal: is it harder to hear the singing?

Ashers appeal: is it harder to hear the singing?
  • The McArthur family, who own Ashers bakery, run refused to make a cake for Gareth Lee, a gay rights activist, with the slogan "Support Gay Marriage" on it. 
  • Ashers were happy to sell Mr Lee a cake, but not to promote a view contrary to their firmly-held religious beliefs. 
  • The Equality Commission supported Mr Lee's claim alleging discrimination.
  • At first hearing in the County Court, Ashers bakery was found to have discriminated against Mr Lee on all three grounds of the claim - sexual orientation, religious belief and political opinion. 
  • The Attorney General intervened in the Appeal case raising issues about the ECHR compatibility of the very legislation on which the initial findings were made. 
  • The appeal case decision this week upheld the original decision and dismissed the points made by the Attorney General.


On Monday, 24 October the Northern Irish Court of Appeal gave its judgement on Ashers Bakery's appeal, a case that has become known as the 'gay cake case'. 

In short, the Court of Appeal Judgement concluded that Ashers had directly discriminated against Gareth Lee on grounds of sexual orientation by refusing to make a cake with a slogan "support gay marriage".

The judges also agreed with the lower court that Ashers had discriminated on the grounds of political opinion and their own religious beliefs. They further dismissed claims made by the Attorney General that the very law on which these findings were based was incompatible with the European Court of Human Rights.

The implications of such a ruling is deeply worrying for everyone. Ashers discriminated against an idea, not a person. 

They would not have made a cake with that slogan for anyone - gay or straight. They contend that as they would have treated everyone the same and so there can be no discrimination. 

Although the Chief Justice accepted that the refusal to bake the cake was not on the grounds that Mr Lee was gay, it was still decided that Ashers had directly discriminated as the benefit from the message or slogan on the cake could only accrue to gay or bisexual people. 

The legal concept of 'associated discrimination' is well understood and respected, but this judgement takes things a stage further. 

The judgement summary states: "We accept that it was the use of the word 'gay' in the context of the message which prevented the order from being fulfilled." 

It appears that the very words and political concept of 'gay marriage' is now protected under equality law. This is a huge extension from the law which protects people against discrimination on the grounds of their sexual orientation. 

Sexual orientation and religious beliefs are both protected under equality law and it is unfortunate that this case has been framed around the contention of these rights.

Perhaps there is room yet for a redemptive story of people uniting around the freedom of all not to be compelled to facilitate certain views with which they profoundly disagree. New research by the Evangelical Alliance shows 89 per cent of respondents agree that businesses should have the right to refuse to print or publish a message it doesn't agree with.

But it is not just Christians who disagree with the Court's decision. Peter Thatchell, prominent gay rights campaigner, famously changed his mind about the case because of his concerns about free speech.

Even the Guardian and Daily Telegraph newspapers united unusually in their editorial concerns over this case.

Surely we can be more creative and generous as a community in how we accommodate each other when we recognise genuinely held beliefs and fundamental freedoms are engaged? Compelling someone to promote or facilitate or express a view that they fundamentally disagree with is the antithesis of a free and fair society.

We live in an age where words and speech are increasingly viewed as threatening, offensive and harmful. Certain words and certain speech that is.

Our concern is that while some speech is banned, other speech may be increasingly compelled or at least required to be facilitated, if one is to continue operating in the public square.

This case may not be the death of the canary in the free-speech mine, but is it just me or is it harder to hear the singing?     


Image: CC0 wp paarz