Civil Liberties

The queer case of the gay cake

This is a guest post by the Rev’d Peter Ould – a Church of England priest, consultant statistician and former blogger with an interest in the topic of human sexuality (you can read the archive of his writing at www.peter-ould.net).

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Pat-a-cake, pat-a-cake, baker’s man.
Bake me a cake as fast as you can;
Pat it and shape it and mark it “LGB”,
And if you won’t do it, you’ll be hearing from me.

In the news this week we heard that the man who walked into Ashers Bakery in Ulster and was turned down in his request for a decorated cake is taking the company involved to court with the help of the Northern Ireland Equality Commission. The Christian Institute have stepped in to support Ashers and are pitching the legal battle as a cultural issue between Christian and Gay Rights.

And they (the Christian Institute) are completely wrong. It strikes me that this issue has nothing to do with religious freedom per se and everything to do with interpreting the Equality Act correctly.

First, the facts. A man went into a baker’s and asked them to make and decorate a cake with a picture of Bert and Ernie from Sesame Street, the slogan “Support Gay Marriage” and the logo of the campaigning group QueerSpace. When the bakers turned him down, he claims that he “suffered unlawful religious, political and sexual orientation discrimination”.

Really?

Let’s now dissect the case.

The most important fact to establish, first of all, is that gay marriage does not exist in Northern Ireland, and this is vital for discerning what the ruling should be. Given that gay marriage does not exist in Northern Ireland, you cannot discriminate against someone on the grounds that they are or are not in a same-sex marriage. Further, because gay marriage has been voted down by the Northern Ireland Assembly, and because a recent ECtHR ruling states clearly that gay marriage is not a human right per se (it is only a right once it is in place in a country), discrimination on the grounds of being in or not being in a gay marriage simply does not exist as a concept in Northern Ireland (though, of course, it does in Scotland and England & Wales).

That all means that a slogan such as “Support Gay Marriage” is a political statement, not an equalities-based statement. Gay marriage is a concept that is not an automatic right (see the ECtHR judgment) but is rather a legislative decision by the relevant authority. If the plaintiff wants to argue that the baker should be forced to create a cake with the political slogan “Support Gay Marriage”, then he is essentially arguing that all political slogans should be forced upon cake decorators with no right of veto. Try “Bring back Slavery” or “Vote UKIP” or “Introduce Infanticide”, and apply the same argument.

And note that this means that direct or indirect political discrimination did not occur. The political discrimination laws in Northern Ireland exist to avoid people being prejudiced on the grounds of party or political affiliation. Specifically, the Northern Ireland Equality Commission describes such discrimination in the following way:

It may be that individuals believe that they are treated less favourably than others because they are Catholic or Protestant or because they are perceived to hold either of these religious beliefs; or because they are perceived to be nationalist or unionist; or indeed individuals may be discriminated against because they do not hold any of these beliefs or opinions. Political opinion is not limited solely to Northern Ireland constitutional politics and may include political opinions relating to the conduct or government of the state, or matters of policy, eg, conservative or socialist political opinions. A political opinion which includes approval or acceptance of the use of violence for political purposes in Northern Ireland is excluded. Religious belief includes those of other religions, eg, Judaism, Islam and Eastern Orthodox Christianity, as well as other faiths and philosophies such as Hinduism, Buddhism and philosophical theism, to name a few.

I can’t see anything in the case to suggest the plaintiff was refused the cake because he was Republican or Unionist, Protestant or Catholic. Is he discriminated against because he is not a Christian? Well, given that the bakers would have refused the cake even if a Christian had asked for it, there is no direct discrimination. Is there something intrinsic about not being a Christian that means you support gay marriage (and would therefore lead to an indirect discrimination claim)? Given that some Christians and some non-Christians support gay marriage, whilst some Christians and some non-Christians don’t support it, how can there be indirect discrimination?

Let’s move on.

Was the plaintiff discriminated against because he was gay? No: it is more than likely that a ‘straight’ person ordering the same cake would have been refused. It is also very clear that the bakery would have no problem selling anything off the shelf (or to special order – for example, a birthday cake) to the ‘gay’ person. There is no direct discrimination on the grounds of sexual orientation, and there are no grounds for direct discrimination on the grounds of marital status since gay marriage is not legal in Northern Ireland and the ECtHR has ruled it is not an intrinsic right.

There is no case of direct discrimination on the grounds of sexual orientation or marital status, but are there grounds for ruling there was indirect discrimination? Given the case is around the phrase “support gay marriage”, is that an intrinsically gay or straight thing to support? Well, no. Some gay people support gay marriage; some do not. Some straight people support gay marriage, some do not. There is nothing intrinsic to being gay that means you have to support the notion of gay marriage. And note, this is a subtly different argument to the indirect discrimination claims against the B&B who refused a bedroom to a civilly-partnered couple: in that case the issue was not a political statement but a legal state (Civil Partnership).

So, no grounds for direct discrimination and no grounds for indirect discrimination. But there is one more very good reason for the baker to refuse the work. The request to have a picture of Bert and Ernie is a clear copyright violation and the baker has every right to refuse to use it until the plaintiff could produce evidence that the image would be licensed correctly.

And that, folks, is the whole case dealt with. You can actually successfully defend against the discrimination claim without once mentioning the idea of the right to hold a religious belief (in this case, a traditional Christian position). That being the case, why is this issue being raised as a clash of cultures by the Christian Institute? It’s not a clash of cultures: it’s simply a wrong understanding of the law by the Equality Commission. Making it a ‘Religion-versus-Homosexuality’ debate undermines the actual legal issues involved and damages the real issues of religious rights and discrimination when they do occur (for example, the current British Red Cross case). Furthermore, by fighting this issue on the right to hold a view (the traditional Christian view) rather than fighting it on the right to reject providing a service for a political campaign (saying ‘no’ to a cake with a political slogan you don’t agree with), there is actually the danger that the bakers will lose. That kind of judgement would have real consequences for those men and women who are victimised in this country for their religious beliefs, and it would come about because of the Christian Institute putting slogans and PR above proper legal support.