On 3 February 2016, an appeal by a Christian-run bakery in Northern Ireland, at the centre of a discrimination case over a so-called ‘gay cake’, was adjourned. This followed a last minute request by Attorney General John Larkin QC to make representation, on issues around a potential conflict between Northern Ireland’s equality legislation and European human rights laws. In the meantime, this case continues to raise some pertinent questions in relation to religion and human rights law.
Gareth Lee made a claim, with assistance from the Equality Commission of Northern Ireland, when Ashers bakery refused to ice a cake with the words “support gay marriage” and the logo of the equality group Queer Space, claiming that the message was contrary to its Christian beliefs. Ashers bakery is run by churchgoing Christians who believe that same-sex marriage is against God’s law.
Lee claimed he had suffered two forms of discrimination: on grounds of his sexual orientation and on grounds of his political opinion, infringing Northern Ireland’s Equality Act and Fair Employment and Treatment Order, which prohibits discrimination on these grounds in the provision of services. The owners of the bakery responded that they had not discriminated against Lee as a gay man, as they would have refused to make the cake to anyone, regardless of their sexual orientation. Nevertheless, the District Judge concluded: “Much as I acknowledge fully their religious belief is that gay marriage is sinful, they are in a business supplying services to all, however constituted. The law requires them to do just that…” Ashers bakery were ordered to pay Lee £500 in compensation.
This ruling handed down by the County Court of Northern Ireland, has provoked discussion regarding religious views and human rights law. Peter Tatchell, writing for The Guardian, whilst profoundly disagreeing with opposition to same-sex marriage, has suggested the District Court had erred in their earlier ruling. In regards to sexual orientation discrimination, it has been argued that this cake request was refused not because Lee was gay man, but because of the message he requested. Despite this, Judge Isobel Brownlie held that this amounted to ‘indirect sexual orientation.’ Of greater concern, Tatchell suggests that on the question of political discrimination, a finding of discrimination could set a ‘worrying precedent.’
Tatchell’s article concludes: “This raises the question: should Muslim printers be obliged to publish cartoons of Mohammed? Or Jewish ones publish the words of a Holocaust denier? Or gay bakers accept orders for cakes with homophobic slurs? If the Ashers verdict stands it could, for example, encourage far-right extremists to demand that bakeries and other service providers facilitate the promotion of anti-migrant and anti-Muslim opinions. It would leave businesses unable to refuse to decorate cakes or print posters with bigoted messages.”
At the centre of this case lies a policy balance between protecting individuals against discrimination, and the infringement of freedom to require businesses to aid the promotion of ideas to which they conscientiously object. It remains to be seen where the courts will determine that the appropriate balance should lie, when the case is reheard in May.
For the latest update on the ‘gay cake’ case: http://www.bbc.co.uk/news/uk-northern-ireland-35474167
For the first instance decision: http://www.equalityni.org/ECNI/media/ECNI/Cases%20and%20Settlements/2015/Lee-v-Ashers_Judgement.pdf
For more on Peter Tatchell’s concerns: http://www.theguardian.com/commentisfree/2016/feb/01/gay-cake-row-i-changed-my-mind-ashers-bakery-freedom-of-conscience-religion
by Hannah Bergin
Current Legal Affairs Writer