The ‘gay cake’ ruling is a victory for equality in Northern Ireland by Joshua Rozenberg

20 May 2015

The Christian Institute, which funded Ashers Baking Company in the “gay cake” case, is “deeply disappointed” at losing. I’m not surprised. There is nothing wrong with fighting cases on social issues such as gay rights, abortion and assisted suicide. But Christian bodies that fund litigation of this sort may wonder whether fighting cases that are bound to fail is really a good use of their resources.

Of course, it’s easy to be persuaded by a well-reasoned judgment that its conclusion was inevitable. But reading the persuasive ruling delivered by presiding district judge Brownlie in the Northern Ireland county court, it’s very hard to see how Ashers could possibly have won.

Gareth Lee, who brought the claim with assistance from the Equality Commission for Northern Ireland, claimed he had suffered two forms of discrimination: on grounds of his sexual orientation and on grounds of his political opinion. Ashers bakery, named after the tribe whose “bread shall be rich” according to a verse in Genesis, is run by churchgoing Christians who believe that same-sex marriage is against God’s law. Their first response to Lee’s claim was they were not discriminating against Lee as a gay man; indeed, they had no knowledge of his sexual orientation. They would willingly have made him a cake without a “support gay marriage” graphic and they would equally have refused to make such a cake for a heterosexual customer.

That argument was dismissed by the district judge, who said the correct comparison would have been with a heterosexual person ordering a cake that said “support heterosexual marriage”. Brownlie found that Ashers must have known that Lee was gay. And she did not accept that making the cake he had ordered would require Ashers to support gay marriage.

“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, subject to the graphic being lawful and not contrary to the terms and conditions of the company. There appears to have been no consideration given to any other measures such as the non-Christian decorator icing the cake or, alternatively, sub-contracting this order.”

Brownlie found that this was direct discrimination. There would have been no justification in the event that this was indirect discrimination.

Turning to the question of whether the claimant had suffered discrimination on grounds of his religious belief or political opinion, the judge began by finding that Lee’s support for the introduction of gay marriage in Northern Ireland was indeed a political opinion. Again, Ashers must have known he supported gay marriage. Again, there was direct discrimination.

Ashers had one last argument, based on the Human Rights Act. Article 9 of the human rights convention contains an unqualified right to freedom of thought, conscience and religion. But the right to manifest one’s religion is subject to other people’s rights. And, said the judge, Asher’s had to respect that principle.

“The defendants are entitled to continue to hold their genuine and deeply held religious beliefs and to manifest them but, in accordance with the law, not to manifest them in the commercial sphere if it is contrary to the rights of others.”

In the context of Northern Ireland, it is not surprising to find the judgment being described as “a dark day for justice and religious freedom in Northern Ireland”. But it is not. The directors of Ashers bakery remain free to hold their religious and political beliefs. We all do. But people who provide public services cannot pick and choose their customers on grounds of their sexual orientation, their political opinion or, indeed, their religious beliefs. And that is how it should be.

As the district judge pointed out, the law works both ways. If Lee happens to go into the bakery business, Ashers could insist on ordering a cake from him with the words “support heterosexual marriage” (or, presumably, “reject gay marriage”). There must be gay bakers in Northern Ireland. Maybe Ashers should give it a try.