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Ashers Bakery – when the icing sugar has settled

An analysis of the landmark Supreme Court judgment

On Wednesday, 10 October the Supreme Court in London delivered judgment in the now famous Ashers bakery case.

It is the latest and perhaps final twist in the case, which began four-and-a-half years ago when a man walked into Daniel and Amy McArthur’s bakery and asked for a cake with the message support gay marriage” iced on top. The Christian owners initially accepted the order but then declined, citing conflict with their religious beliefs. The customer, Gareth Lee, who is gay, felt that he had been discriminated against and approached the Equality Commission Northern Ireland (ECNI) for advice. The ECNI backed his case and proceedings against the bakery were issued.

Last week, the five Supreme Court judges unanimously ruled that there had been no discrimination against the customer on the grounds of sexual orientation, religious belief or political opinion – the last ground being peculiar to Northern Ireland.

As the icing sugar settles on the ruling, here are three broad points we might like to consider as Christians who have been following the case:

A win for everyone

The case is a win for the LGBT community. In fact, it’s a win for all protected minorities under equality law legislation. Lady Hale, who presided in the Preddy v Bull case, made clear that this judgment does not give license to discriminate against anyone based on any protected characteristic. She said: 

It is deeply humiliating, and an affront to human dignity, to deny someone a service because of that person’s race, gender, disability, sexual orientation or any of the other protected personal characteristics. But that is not what happened in this case and it does the project of equal treatment no favours to seek to extend it beyond its proper scope.”

The case was also a win for business owners, including those of faith. Lady Hale said:

It is, of course, the case that businesses offering services to the public are not entitled to discriminate on certain grounds. The bakery could not refuse to provide a cake or any other of their products to Mr Lee because he was a gay man or because he supported gay marriage. But that important fact does not amount to a justification for something completely different obliging them to supply a cake iced with a message with which they profoundly disagreed. In my view, they would be entitled to refuse to do that whatever the message conveyed by the icing on the cake support for living in sin, support for a particular political party, support for a particular religious denomination.”

The ruling attempts to protect everyone from discrimination on the basis of a protected characteristic and people’s freedom from compelled speech or support for a message with which they profoundly disagree. 

The case is a win for everyone.

A story being told

Legal cases don’t just occur in a vacuum. They quickly become part of a narrative in which there are just causes and oppressors, winners and losers. Some political parties in Northern Ireland supported one side or the other as if it was party policy. Congratulations to the McArthurs and criticisms of the Equality Commission came thick and fast from many within the DUP, meanwhile Sinn Féin issued a message of solidarity to the LGBT community” on the day of the result. 

There was a strong implication in some quarters that this case could only happen in a backwards’ place like Northern Ireland. This suits a particular secular view where the default framing is that religion is a problem to progress because it is inherently prejudiced and potentially harmful. It therefore surprised many people that a panel of judges in the highest court in the UK, based in the cosmopolitan capital, could decide unanimously that there was no discrimination. 

In short, the case was often pitched as being about Christians v the LGBT community, but the judges were unanimously emphatic that this was not how they saw the case. The objection was to the message not the customer. In an age of identity politics, where truth is an endangered concept, it’s important we strive to tell the real story and not the one that fits best with our’ particular side.

A better way ahead?

In a media interview after the ruling, Mr Lee said that he felt like a second-class citizen”. This is sad and deeply unfortunate. We hope he can find comfort in the fact that five judges thoroughly tested the evidence and the law and found no discrimination against him on any grounds. Where discrimination has occurred it is right and proper that it is investigated and dealt with. In a society where many gay people feel their rights have been withheld, and Christians may feel like they are on the margins, it is inevitable that people will feel discriminated against in instances where, legally, this is not the case.

Outside the court, the McArthurs said they would happily serve Mr Lee in the future. While this may be their legal duty, it was also a beautiful moment of Christian humility and hospitality and bridge-building offered to someone who had sued them and accused them of discrimination.

Whichever way the result had went, we can be sure that there will be more litigation in similar cases in the future. From the start, the Equality Commission said that its hands were tied by the structures which prevented them from pursuing a role as mediator or investigator once a party had come to them with a complaint. If the bakery had gone to the Equality Commission first, or subsequently to the Human Rights Commission, this case could have looked very different from the outset. 

In my view, there should be some reconsideration of these structures where a potential legal case involves parties which are each claiming protected characteristics under equality or human rights legislation. There must be a better mechanism which can allow for conversation, understanding and alternative dispute resolution (ADR) to be facilitated in cases where both parties have protected characteristics and where the outcome of the case is in the public interest by way of clarifying the law.

This case was a symptom of a deeper problem, a clash of worldviews. In this contested space there is an urgent need for Christians to play their part as peacemakers and seek the best for everyone. In my experience, and in good Northern Irish tradition, a good place to begin is over a cup of tea and a slice of cake.

About the author

David is our lead on public policy. He is a former solicitor and represents the Evangelical Alliance on a range of government, civic and charitable forums. He serves in the space where faith, law, politics and culture intersect.

See more from David Smyth

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