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Christian bakers who refused to make ‘gay cake’ lose their appeal against discrimination finding

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But has the Court of Appeal made the right decision?

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Today, the Court of Appeal handed down its long-awaited judgment in the so-called gay cake case.

The immensely important and well-publicised human rights case is about Gareth Lee, a gay rights activist. He ordered a cake bearing the slogan “Support Gay Marriage” from a bakery in Northern Ireland called Ashers.

Though the bakery, run by a Mr and Mrs McArthur, initially accepted the order, the pair then decided making the cake would run counter to their Christian beliefs.

Ashers — a name that derives from the book of Genesis — apologised and refunded Lee the £36 he’d paid to place the order, yet the incident drummed up intense media scrutiny when Lee made a claim against the bakery for discrimination.

At first instance, District Judge Brownlie ruled Lee had been directly discriminated against on grounds of sexual orientation and political belief.

Today, the Court of Appeal agreed with her.

Three judges reportedly told the court the appellants would not have refused to make a cake that said “Support Heterosexual Marriage”, and on this continued:

We accept that it was the use of the word ‘gay’ in the context of the message which prevented the order from being fulfilled.

The court ruled the bakery’s actions amounted to direct discrimination and — in a society that is becoming ever more tolerant to non-heterosexual views and rights — you might assume the public would overwhelmingly agree with this. Indeed, Joshua Rozenberg QC said at the time of the Brownlie judgment:

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.

That said, some are very doubtful about the ruling and the precedent it sets.

Speaking to Legal Cheek in the wake of today’s Court of Appeal judgment, human rights specialist Shoaib Khan voiced his concerns:

This was an important opportunity for the court to demonstrate its support for the right to freedom of religion, but it seems to have ended up further alienating religious groups. It is time that human rights groups and the legal system started treating the right to freedom of religion with the same respect afforded to other fundamental rights.

Many others have questioned the courts’ approach to the gay cake saga. Notably, gay rights activist Peter Tatchell penned a strongly worded article in The Guardian earlier this year in which he said:

[Judge Brownlie] concluded that service providers are required to facilitate any ‘lawful’ message, even if they have a conscientious objection. This raises the question: should Muslim printers be obliged to publish cartoons of Mohammed? Or Jewish ones publish the words of a Holocaust denier? Or gay bakers accept orders for cakes with homophobic slurs? If the Ashers verdict stands it… would leave businesses unable to refuse to decorate cakes or print posters with bigoted messages.

At the time, a number of lawyers came out in support of Tatchell’s article, including Khan and criminal barrister Matthew Scott.


Even actor Patrick Stewart publicly backed the bakers, saying “I would support their rights to say no”.

Are you more of a Joshua Rozenberg or a Patrick Stewart? You can share your views on the gay cake case by casting your vote in our poll below.

56 Comments

Anonymous

Of course it was the right decision Katie!!

(6)(13)

Sarah

Many people will agree with this ruling because it conforms to their social views, but as Tatchell points out it is intellectually unsustainable.

Would you also think it right to force Muslim bakers to put an anti-Islam slogan on a cake? In fact, I very much doubt whether the claimant in this case would have been so brave had it been a Muslim who had rejected his cake on religious grounds.

Christians are such easy targets these days for hateful cowards.

(33)(11)

Anonymous

That’s so right!

(5)(3)

Just Anonymous

I do think this decision was wrong, but not for the reasons you give.

The decision was wrong because it is not discriminatory for a private business not to offer a service or a product to all people. For example, there should be nothing wrong (legally) with a private pharmacy not stocking condoms or a private bookshop not stocking Harry Potter. Similarly, this bakery was ‘not offering’ such cakes to all people (whether gay or straight.) I consider all three stances normatively wrong, but I wouldn’t render them illegal.

However, your argument appears to be that just because we’d be nervous of holding a particular group to a certain standard, we shouldn’t hold anyone else to that standard either. That I cannot accept. Life of Brian, for instance, is a superb film. I’d hate to see it censored just because the equivalent film in an Islamic setting might not be quite so well received!

(16)(0)

Sarah

Yep, I wouldn’t disagree with your comment, I think you explain well the legal justification against this ruling.

My point is that people will support the court’s decision based only on their social views. However, they aren’t consistent with that support – I.e. if a different group had been targeted they would think differently.

(5)(0)

Just Anonymous

Fair enough, nothing I disagree with there. I certainly do agree we should be consistent.

(3)(0)

Anonymous

Your examples are not compatible with the problem. A pharmacy which has no condoms cannot sell condoms to anybody at all. A bookstore which does not have Harry Potter cannot sell it to anybody at all. Neither example is discriminatory, because nobody is being served.

A bakery which refuses to decorate a cake with a gay slogan requested by a member of the public can only do so if they won’t custom decorate any cakes at all, for anybody. If they were to make a wedding cake for Bill and Sam, heterosexual couple, but refused to make a cake for Bill and Sam, homosexual couple, they would obviously be discriminating.

(3)(2)

Anonymous

“A bakery which refuses to decorate a cake with a gay slogan requested by a member of the public can only do so if they won’t custom decorate any cakes at all”

Nope, I think you’ve missed the point.

“If they were to make a wedding cake for Bill and Sam, heterosexual couple, but refused to make a cake for Bill and Sam, homosexual couple, they would obviously be discriminating”

Depends. If it was a generic wedding cake, then yes. If it was a ‘gay’ wedding cake, e.g. with two male figurines, then no, because they wouldn’t sell that type of cake to any customer, regardless of sexuality, race etc, thus no discrimination.

(1)(0)

IMCA

If it was plain wedding cake that, hypothetically, they were only selling to the public, and they knew the customers asking for such a cake were a gay couple, they would (as they openly espouse) refuse to serve such customers ie. sell them a cake ………………………regardless of all male figurines or not. (A bit like a bus company saying you can’t sit on the front seats of their buses because your black 😉

(0)(0)

IMCA

you’re

(0)(0)

Pantman

This is wrong. Tatchell is wrong and so is Rozenberg. Rozenberg is wrong, because political philosophy is not a protected characteristic. Tatchell is wrong because asking a Muslim to print a picture of Mohammed or a Jew to print denials of the atrocities could well bring into play a defence: that is that such actions could well amount to offences under the Public Order Act 1986, Criminal Justice and Public Order Act 1994 or Racial and Religious Hatred Act 2006.

ie asking someone with protected characteristics to undertake these acts could amount to a hate crime. That’s a simple defence, and it answers all the hyperbole that others are stirring up over this issue.

You couldn’t go into a bakery owned by homosexuals and demand a cake emblazoned with an anti-gay statement.

(1)(0)

Anonymous

Except that Rozenberg isn’t wrong, because political opinion is a protected characteristic in Northern Ireland

(2)(0)

Pantman

Could you give us a reference? Even if true, the hyperbolic arguments surrounding this issue are wrong, because other factors come into play – as above.

(0)(0)

Anonymous

Art.3 Fair Employment and Treatment (NI) Order 1998.

I’m not criticising your point; only highlighting that equality law in NI goes further than in England and Wales in this respect and that that fact is highly material to the way the case was decided.

(1)(0)

Anonymous

“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.”

1. A bakery is not a public service.
2. This sets a dangerous precedent in forcing private individuals into contracts via the discrimination card.

(23)(4)

Anonymous

Not really. It sets the ‘dangerous’ precedent of forcing people not to be bigots.

(8)(24)

Anonymous

Pardon?

(2)(0)

Hal

I assume you intended that sarcastically, but can you not see that it is indeed dangerous to think people should be forced not to be bigots?

(3)(1)

Anonymous

1. It is only jeopardising your own business to turn away trade, that is a businesses choice.

2. It will either lead to a lot of frivolous claims, I recall a friend of mine a couple of years ago not being allowed into a gay bar because he ‘didn’t look gay enough’ or, people will just come up with alternative reasons not to provide the service.

In the absence of health or other substantial grounds, such as alcohol/tobacco sales, the government and/or the courts should not set the rules by which one must conduct their business.

(8)(1)

Anonymous

Not really. It sets the ‘dangerous’ precedent of forcing people not to be bigots.

(3)(8)

Atheist-cally pleasing

No, I am afraid that you are flawed in your use of the term “bigot”.

These bakers politely refused to create a cake that was contrary to their own belief. As far as I am aware the customer was treated no differently in any other aspect of the transaction.

Would a vegan cake shop produce a cake saying “We love bacon cakes”? (Pun very much intended)

I highly doubt it and I further doubt that you would condemn the broccoli brigade in such strong terms.

But, thanks for playing.

(7)(1)

Pantman

The vegan/vegetarian nature of the business would be obvious, thus asking them to create a cake that contravened their beliefs could well amount to a hate crime.

(1)(0)

Anonymous

Rubbish. Vegetarianism isn’t a protected characteristic.

(0)(1)

Pantman

Rubbish my arse! Vegetarianism is a valid ‘belief’, and belief is a protected characteristic.

(1)(1)

Anonymous

I “believe” you’re a twat.

You can’t contradict me because my “belief” is a protected characteristic…

(0)(0)

Anonymous

I believe you need to do some research on the meaning of belief.

Besides which, I think the general point is that this isn’t just an Equalities Act issue – the action of the “request” for services may be construed to cause “alarm and distress”, or be designed to cause a breach of the peace. There’s no need for protected characteristics for those factors to come into play, and thus a defence is formed in declining to provide such services..

(0)(0)

Anonymous

Bert and Ernie aren’t gay, they’re bi. You think they aren’t getting any porcine action from Miss Piggy on the side? Every Muppets film shoot is just one big long (pun intended) orgy, everyone knows that.

(3)(0)

Anonymous

Not sure how I feel about this decision

(2)(0)

Anonymous

Apathy is so interesting. Thank you.

(5)(3)

Hal

I’m no expert in discrimination law, still less Northern Irish discrimination law. But to me it seems a leap to regard this as direct discrimination. The customer wasn’t treated less favourably because of his sexuality or his opinion on gay marriage – he could have bought any of the products that they’d have been prepared to sell to a heterosexual opponent of gay marriage. If (for whatever reason) a heterosexual opponent of gay marriage had wanted to order the same cake with the same message, he’d have been refused also. It looks more like indirect discrimination to me, in the sense that a refusal to sell cakes with that message is more likely to disadvantage gay people and proponents of gay marriage than it is to disadvantage a customer who doesn’t have those characteristics.

(11)(2)

Anonymous

Interesting point to use the service provision, as opposed to the service user as the comparator. Makes sense to me though!

(0)(0)

Hal

I didn’t think I was, though I may have misunderstood. Isn’t comparing his treatment with that of a (notional) heterosexual customer seeking the same product comparing the user rather than comparing the service?

(4)(0)

Anonymous

What makes it all the more interesting is that the legislature of this part of the U.K. actually agrees with the bakers and does NOT support gay marriage.

(2)(0)

Anonymous

Right decision

(1)(5)

Anonymous

I agree it’s the correct decision

(3)(3)

Anonymous

I don’t

(2)(1)

Anonymous

Decision clearly made for policy reasons.

The cake isn’t gay.

The bakery would’ve served the guy a different cake.

You can’t discriminate against cakes.

(5)(1)

Gus the Snedger

Perhaps the cake self identifies as gay?

(2)(2)

Lyle

Patrick Stewart QC and Peter Tatchell QC?

(1)(1)

lyle

Are there any Lawyers or law students left in this site?

(2)(0)

Anonymous

I’m just waiting for the day that a gay rights activist walks into a Muslim-owned business and makes the same request.

I wonder whether, had it been such in this case, the courts would have reached the same decision, or would have found some fudged middle way taking into account “cultural sensitivities”.

Because Christians (in this country, anyway) tend not to manifest their beliefs with violence, threats and extreme sensitivity they are easy targets.

(4)(2)

Trumpenkrieg

It’s not going to happen. It’s cool and progressive to pick on Christians and use lawfare to hit them with crippling costs for failling to bake a cake you can have baked at a hundred different bakeries on the high street. Did you hear me? It’s COOL and PROGRESSIVE. Christians are usually white and deserve to basically be hounded to death because the Crusades and stuff. Right?

However, if you so much as demand that a Muslim carry out ordinary working duties (such as cooking bacon when working in a police canteen kitchen), or object to them teaching small children whilst wearing a ful face covering ninja costume, you are literally — LITERALLY — worse than Hitler.

I can’t believe I have to explain Equality 101 to you, you reactionary goose-stepping bigot.

(5)(4)

The Thought Police

Come with us, please, sir…

(3)(0)

Anonymous

I’m not an expert in this area of law but still feel a need to express an opinion…

(5)(0)

Anonymous

(3)(0)

John McGlinchey

Perhaps the McArthurs should pray for a more favourable outcome…it would after all be much cheaper…

(0)(0)

Ben the Baker

This post has been removed because it breached Legal Cheek’s comments policy.

(1)(0)

Ben the Baker

Why delete that?

I’m gay!

I was making a legitimate gay-themed joke!

(0)(0)

Ben the Baker

I repeat, I’m going to set up a bakery with a homosexual theme.

This post has been moderated because it breached Legal Cheek’s comments policy.

(0)(0)

Anonymous

They removed the bit about poof pastries, fairy cakes, mince pies and fudge cakes in case it offended someone.

I thought it was funny anyway…

(1)(0)

Anonymous

This post has been removed because it breached Legal Cheek’s comments policy.

(1)(0)

Anonymous

Will the Equality Law be up for grabs again post Brexit ?

(0)(0)

John

I think it is a shame that the judge wasn’t able to make a distinction between discrimination of customers based on their race, sexual orientation etc and the content of the message which was not acceptable to workers at Ashers. I’m reasonably confident that if an overtly camp person came in to Ashers and asked for a cake wishing “happy birthday” they would have been served. To me, the precedent set has assumed that gay customers are all coming in to get messages supporting gay rights and are therefore being discriminated against because everything they might want on a cake will not be provided by the bakers.

(0)(0)

Ben the Baker

Gay means happy.

How about a cake that says “Gay Birthday”?

(0)(0)

Ben the Baker

By the same token, how did the bakery know that the cake refered to homosexual marriage, rather than “happy” marriage?

(1)(0)

Anonymous

So does that mean that if this happened again, the bakery would have to make the cake?

(0)(0)

Comments are closed.