Baker's refusal to bake gay marriage cake not direct discrimination

Blanche Robertson
October 13, 2018

After a four-year legal battle, Christian bakers in Northern Ireland have won their case at the Supreme Court in the United Kingdom.

The bakery, owned by a Christian family, had turned down Lee's request to make a cake depicting Bert and Ernie, the Sesame Street puppets, and a slogan stating: "Support Gay Marriage". The McArthurs said that they could not provide the cake Lee wanted, citing their Christian beliefs barring gay marriage.

"The Supreme Court, in a unanimous judgment, found that the bakers" decision was based on the wording of the slogan on the cake and not on the sexual orientation of their prospective customer, Gareth Lee. Where you get into slightly greyer areas is whether it was "associative direct discrimination" in the sense that you could not separate the message from the sexual orientation of Mr Lee. She said: "Experience has shown that the providers of employment, education, accommodation, goods, facilities and services do not always treat people with equal dignity and respect, especially if they have certain personal characteristics which are now protected by the law".

Lee, who is gay, ordered the cake in May 2014.

Ashers Bakery owners Daniel and Amy McArthur said that they were "delighted and relieved" by the ruling, which they said "protects freedom of speech and freedom of conscience for everyone". She apologized to Lee, and he was given a full refund. "We'd served him before, we'd serve him again".

Ashers bakery is named after a biblical reference from Chapter 49 of the Book of Genesis, "Bread from Asher shall be rich, and he shall yield royal dainties".

Bakery owners Amy and Daniel McArthur, who own "Ashers" in Belfast, speak to the media outside the Supreme Court after winning their appeal against a gay rights campaigner who took the business to court after they refused to make a cake promoting same-sex marriage, on October 10, 2018, in London, England.

As a freedom of expression and human rights defender, I believe that people should have the right to express ideas with which they agree and also to refuse to facilitate ideas with which they disagree. The court's decision compared the order, in the context of the bakers' Christian beliefs, to asking a Christian publisher to print atheist pamphlets.

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Afterward, Lee said in a statement outside the court that the refusal of Ashers to make his cake "made me feel like a second-class citizen, and the judgment today tells me that that is OK". By contrast, in the Phillips v. Craig and Mullins wedding cake case, the US Supreme Court explicitly defended Phillips on the basis of his freedom of religion, a right the American court has historically interpreted with a great deal of latitude.

Despite the expectation of a landmark ruling in the Masterpiece Cakeshop case, the Supreme Court found the Colorado Civil Rights Commission treated Phillips unfairly due to his religious faith in a 7-2 ruling described as "narrow" by legal analysts.

And the actual cost of the cake that started the controversy?

Speaking for the Coalition for Marriage, a United Kingdom -based alliance of both secular and religious groups opposed to the redefinition of marriage by the state, Sharon James said: "This is a great day for commonsense and free speech". In Bull v. Hall (2013), the UK Supreme Court upheld the complaint of a gay couple who had been refused a double room by a Christian couple who ran a bed and breakfast.

"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", he wrote.

The judge added that the judgment was not meant to "minimise or disparage the very real problem of discrimination against gay people".

The decision was welcomed by Arlene Foster, leader of the Democratic Unionist Party, a member of the U.K.'s governing coalition and the largest party in Northern Ireland.

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