The law should not require bakers to promote gay marriage
By Peter Tatchell
The Guardian – London, UK – 1 February 2016
READ & COMMENT (shortened, edited version): http://gu.com/p/4ga85/stw
Like most gay and equality campaigners, I initially condemned the Christian-run Ashers Bakery in Belfast over its refusal to produce a cake with a pro-gay marriage slogan for a gay customer, Gareth Lee.
I supported his legal claim against Ashers and the subsequent verdict, which last year found the bakery guilty of discrimination. My reasons for supporting Gareth’s claim were:
1. Ashers had falsely advertised their services, saying they were willing decorate their cakes with any message that a customer wanted. They did not say there were any limits on the designs or wording.
2. I feared that Ashers actions could open the flood gates to allow sectarian loyalist-republican discrimination and discrimination against women, LGBTs and minorities – and their points of view.
Now, two days before the Asher’s case is being considered by the Appeal Court, I have changed my mind. Much as I wish to defend the gay community, I also want to defend freedom of conscience, expression and religion.
While Christian bed and breakfast owners and civil partnership registrars were clearly wrong to deny service to gay people, this case is different. It is about the refusal to facilitate an idea – namely, support for same-sex marriage.
I will continue to oppose the proposed “conscience clause” in Northern Ireland. It is intended to allow discrimination against LGBT people. I do not accept that people of faith should be permitted by law to deny service to LGBTs – or anyone else. Discrimination against people is never acceptable.
The whole saga began in 2014 when Ashers said they were not willing to ice a cake with the words “support gay marriage” and the logo of the equality group, Queer Space; claiming it was contrary to their Christian beliefs to promote homosexuality and gay marriage.
This struck many of us as discrimination based on religious-inspired homophobic prejudice. Ashers believe that the relationships of lesbian, gay, bisexual and transgender (LGBT) people are wrong and should not be eligible for the status of marriage. They translated these beliefs into action and declined to make the cake. Ashers would have decorated a cake with a message celebrating traditional heterosexual marriage and promoting a Christian organisation. Surely this was an example of clear-cut anti-gay discrimination?
Gareth Lee’s legal case against Ashers was backed by the Equality Commission of Northern Ireland. It argued that the bakery’s actions breached the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 and The Fair Employment and Treatment (NI) Order 1998 , which prohibit discrimination in the provision of goods, facilities and services on the respective grounds of sexual orientation and political opinion.
A Belfast court last May agreed and found Ashers guilty of discrimination on both grounds; ordering them to pay Gareth £500 compensation.
I profoundly disagree with Asher’s opposition to same-sex love and marriage, and support protests against them. They claim to be Christians and followers of Jesus. Yet he never once condemned homosexuality. Moreover, discrimination is not a Christian value. Ashers’ religious justifications are, to my mind, theologically unsound.
Nevertheless, on reflection, the court was wrong to penalise Ashers and I was wrong to endorse its decision.
For sure, the law suit against the bakery was well intended. It sought to challenge homophobia. But it was a step too far. It pains me to say this, as a long-time supporter of the struggle for LGBT equality in Northern Ireland, where same-sex marriage and gay blood donors remain banned.
The equality laws are intended to protect people against discrimination. A business providing a public service has a legal duty to do so without discrimination based on race, gender, faith, sexuality and so on.
However, the court erred by ruling that Gareth was discriminated against because of his sexual orientation and political opinions.
His cake request was not refused because he was gay but because of the message he wanted on the cake. There is no evidence that his sexuality was the reason Ashers declined his order.
Despite this, Judge Isobel Brownlie said refusing the pro-gay marriage slogan was unlawful indirect sexual orientation discrimination because same-sex marriage is a union between persons of the same-sex and therefore refusing to provide a service in support of same-sex marriage was de facto sexual orientation discrimination.
I disagree. Refusing to facilitate a message in support of same-sex marriage is not sexuality discrimination. It is discrimination against an idea, not against a person.
On the question of political discrimination, the judge said Ashers had denied Gareth service based on his request for a message supporting same-sex marriage. She noted: “If the plaintiff had ordered a cake with the words ‘support marriage’ or ‘support heterosexual marriage’ I have no doubt that such a cake would have been provided.” Brownlie therefore concluded that by refusing to provide a cake with a pro-gay marriage wording Ashers had treated him less favourably, contrary to the law.
This may be a case of differential treatment. However, it was not discrimination against views held or expressed by Gareth but against words he wanted on a cake. Moreover, the law against political discrimination was meant to protect people with differing political views, not to force others to further political views to which they conscientiously object.
The finding of political discrimination against Gareth sets a worrying precedent. Northern Ireland’s laws against discrimination on the grounds of political opinion were framed in the context of decades of conflict. They were designed to heal the sectarian divide by preventing the denial of jobs, housing and services to people because of their politics. There was never an intention that this law should compel people to promote political ideas, such as same-sex marriage, with which they disagreed – let alone on a cake.
The judge concluded that service providers are required by law to facilitate any “lawful” message, even if they have a conscientious objection to it.
This begs the question: Should a Muslim printer be obliged to publish cartoons of Mohammed or a Jewish one the words of a Holocaust denier? Will gay bakers have to accept orders for cakes with homophobic slurs?
If the current Ashers verdict stands it could, for example, encourage far right extremists to demand that bakeries and other service providers facilitate the promotion of anti-immigrant and anti-Muslim opinions. It would leave businesses unable to refuse to decorate cakes, print posters and emblazon mugs with bigoted messages.
In my view, it is an infringement of freedom to require private businesses to aid the promotion of ideas to which they conscientiously object. Discrimination against people should be unlawful but not discrimination against ideas and opinions.