Regarding the Ashers Bakery case in the UK Supreme Court, I've been reading the judgment in detail.
The case centres around a bakery which refused to bake a cake iced with the message 'Support Gay Marriage' due to their religious beliefs. Lower courts found that this was discrimination, but the Supreme Court unanimously overturned this on appeal.
The case sets freedom of belief against consumer rights not to be discriminated against. Or to put it another way, does the consumer's right to service extend to requiring a business to express an opinion they disagree with?
I'll skip over the technical legal questions of jurisdiction and begin with some background facts: Ashers was clearly set up as a Christian business. Their name comes from Genesis 49:20, which says “Bread from Asher shall be rich and he shall yield royal dainties”. However, they didn't advertise themselves as such. Customers wouldn't necessarily have known that fact. I didn't know it until I read the judgment. They didn't mention any political or religious restrictions on the leaflets they used to advertise their 'Build A Cake' service.
Illegal discrimination, in this case, is defined by the Sexual Orientation Regulations 2007 made under the Equality Act. Regulation 3(1) states as follows:
"For the purposes of these Regulations, a person (“A”) discriminates against another (“B”) if, on grounds of the sexual orientation of B or any other person except A, A treats B less favourably than he treats or would treat others (in cases where there is no material difference in the relevant circumstances)."
Both sides of the case agreed that either there's direct discrimination, or there's no discrimination at all. Indirect discrimination (for technical legal reasons) could not be the case.
So, the key question: were Ashers in breach of those Regulations? Did they discriminate against Mr. Lee because he's gay, or did they merely discriminate against a political opinion they disagreed with?
The lower courts found that they discriminated because Mr. Lee is gay; Ashers said they would have refused to support that opinion irrespective of the sexuality of the person requesting the message.
Ashers' legal representatives cited the case of Islington Borough Council v Ladele. In that case it was found that it cannot constitute direct discrimination to treat all employees in precisely the same way. By definition, they said, direct discrimination is treating people differently.
Regulation 3(3) says "For the purposes of these Regulations, a person (“A”) discriminates against another (“B”) if A applies to B a provision, criterion or practice—
(a)which he applies or would apply equally to persons not of B’s sexual orientation"
The District Judge in the lower court had compared it to refusing to to bake a cake saying 'Support Heterosexual Marriage': the District Judge argued that both were illegal. Ashers' solicitors said that was a false comparison: there's a subtle difference between how you would treat other *people* and how you would treat other *messages*.
They said the comparison shouldn't be with a different message on the cake. The comparison should be with someone who's heterosexual wanting to buy that same cake. In that case, the Ashers would also have refused - and therefore they didn't discriminate under Regulation 3(3)(a).
It's not legal to do one thing, as a proxy for another. So in the case James v Eastleigh Borough Council, when retirement ages were different between men and women, giving free entry to retired people effectively discriminated against men aged 60-64. Likewise, in the case Preddy v Bull, letting rooms to married couples only had been ruled to be discrimination based upon sexual orientation because (before gay marriage was introduced in the UK) it was effectively a proxy for banning gay people.
Next, the Supreme Court asked in effect 'Okay so they didn't discriminate in law against Mr. Lee, but did the Ashers discriminate based upon someone else's sexual orientation?'.
There are previous cases of this 'associative discrimination' - like Coleman v Attridge Law, in which someone was discriminated against because her son was disabled. Or the case of English v Thomas Sanderson Blinds Ltd, in which someone was subject to anti-gay bullying despite not actually being gay. In both cases, courts found there had been discrimination (though in the latter case, with a strong dissenting voice within the judgment).
But in these cases, the discrimination still had been based upon the treatment of an individual. It would be something of a leap to say that refusing to bake the cake would discriminate against 'all gay people' or 'any gay person who might eat the cake'; even then, there might well have been heterosexual people who would 'benefit from' the cake too.
The Supreme Court therefore ruled that there wasn't discrimination under the law based upon sexual orientation.
Was there discrimination based upon political beliefs, though? The arguments basically mirror those over sexual orientation; I won't go through all of the precedents which were cited on this question. There's one slight but subtle difference though.
Again, the Supreme Court said that "The objection was not to Mr Lee because he, or anyone with whom he associated, held a political opinion supporting gay marriage. The objection was to being required to promote the message on the cake."
But the big difference was this: as regards sexual orientation, the Ashers clearly were indifferent to whether Mr. Lee was gay or heterosexual. Here, though, they clearly thought that Mr. Lee held that opinion - an opinion supporting gay marriage.
In that context, the Ashers could have been found to discriminate on grounds of political beliefs but not to have discriminated on grounds of sexual orientation.
Thus, the case of Kokkinakis v Greece before the ECHR became relevant. That case interpreted Article 9 as meaning that "freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned."
Precedents included Buscarini v San Marino, which found that a non-Christian couldn't be forced to take a Christian oath, and Commodore of the Royal Bahamas Defence Force v Laramore, which asserted that a Muslim couldn't be forced to doff his cap at Christian prayers.
The Supreme Court also referenced the US principle of 'compelled speech', which applies to the First Amendment, and suggested that Articles 9 and 10 of the ECHR provide similar protections against compelled speech.
Here, too, the Supreme Court disagreed with lower courts: whilst the lower courts found that baking the cake wouldn't imply Ashers supported gay marriage, the Supreme Court found that they might reasonably have been worried (for example) that others would see the Ashers logo on the cake box and think that they supported the campaign.
Even irrespective of that, by being required to produce the cake, they were being required to express a message with which they deeply disagreed.
Essentially, the Supreme Court found that it wasn't discrimination on the grounds of sexual orientation. And, if it were discrimination on the grounds of political belief, that could not trump the owners of Ashers' own rights to their political belief.
This judgment seems pretty sound in law to me. I would be worried if the owners of any business were to be forced to produce messages they profoundly disagreed with.
Legally, and morally too, I think the correct decision has been reached.
Jonathan Arnott MEP.
.jpeg)