Having your cake and eating it? Reflections on the UK Supreme Court’s decision in the ‘Belfast gay marriage cake’ case

By Prof Steven Greer, Professor of Human Rights (University of Bristol Law School)

Photo: QueerSpace

On 10 October 2018 five judges on a panel of the UK Supreme Court unanimously held that the owners of Ashers bakery in Belfast, Mr and Mrs McArthur, had not violated the rights of LGBT activist, Mr Gareth Lee, by refusing to supply a cake decorated with Sesame Street characters Bert and Ernie, the logo of the campaign group ‘QueerSpace’, and the slogan ‘Support Gay Marriage’. The bakery had initially accepted Mr Lee’s order but declined to complete it and returned his money on the grounds that the proposed message conflicted with the deeply held religious convictions of the proprietors, that the only form of marriage consistent with the Bible and acceptable to God is that between a man and a woman. Supported by the Equality Commission for Northern Ireland, Mr Lee brought a claim against the bakery and the McArthurs (‘the appellants’) for direct and indirect discrimination on grounds of sexual orientation and/or on grounds of religious belief and/or political opinion contrary to relevant legislation. In March 2015 a county court judge held that Mr Lee had been the victim of direct discrimination on grounds of sexual orientation, religious opinion and political belief. The Northern Ireland Court of Appeal subsequently upheld the sexual orientation complaint and decided there was no need to settle the other issues. Having earlier been joined as party to the appellate proceedings, on 28 October 2016, the Attorney General for Northern Ireland referred the matter to the UK Supreme Court where it was heard together with the appeal by the McArthurs and the bakery

Delivering the unanimous judgment of the Court, Lady Hale ruled that, since the appellants’ objection was to the message on the cake, also held by many heterosexuals, and not to any personal characteristics of the customer or anyone with whom he was associated, there had been no discrimination on grounds of sexual orientation. Nor had there been any direct discrimination on grounds of religious belief or political opinion. As the Court pointed out, the McArthurs’ European Convention rights to freedom of thought, conscience and religion and to freedom of expression include the right not to be obliged to manifest beliefs or express opinions they do not hold. Their Lordships concluded that relevant legislation should not be interpreted or given effect in such a way as to compel them to do so unless justification was shown, and it had not been in this case. Having determined the rights of the McArthurs in these terms, the Court also decided that there was no need to consider those of the bakery.

The ‘Belfast gay marriage cake’ case has aroused passionate opinions on all sides. But this has, unusually, cut across the familiar lines of demarcation between liberals, predictably supporting Mr Lee, and religious conservatives, equally predictably supporting the bakery and the McArthurs. Some prominent advocates of gay marriage, such as Peter Tatchell have, for example, defended the vindication of the McArthurs’ right not to be compelled to decorate a cake with a message profoundly at variance with their deeply held religious convictions, as a triumph for freedom of expression. Others have supported the judgment on the grounds that it also protects a right of conscientious objection on the part of, for example, feminist bakers not to be compelled to ice cakes with slogans supporting bans on abortion, or Muslims against having to decorate their products with cartoons of the Prophet Muhammad.

There can be no doubt that this is a complex case at the heart of which lies a clash of interests and rights. In such circumstances somebody’s will emerge more restricted than they would have preferred. The legal challenge is to find the most coherent, and least unjust, way of arriving at this destination. Arguably this is not true of the Supreme Court’s judgment which, as a result, is also likely to open a Pandora’s box of future problems. The core difficulty lies in the assumption that being required to convey the opinions of others, with which the deliverer disagrees, is a breach of the latter’s right to freedom of belief and/or expression. Yet, if this were the case, it would also be true of post office workers delivering mail and printers printing material containing points of view with which they disagree. Many journals and periodicals also typically declare that the views expressed by contributors do not necessarily reflect those of the editors. Businesses, such as bakeries conveying messages in other ways, would be in substantially the same position if their advertising, and the terms of their contracts with customers, contained similar disclaimers. This would also be a better solution to the challenges presented by the Belfast gay marriage cake controversy than the one the Supreme Court has chosen, since allowing certain providers of goods and services, but not others, to choose which otherwise lawful messages they are prepared to deliver, enables them to have their cake and eat it.

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