Bakery’s refusal to make same-sex marriage cake is NOT discriminatory, rules Supreme Court
The UK Supreme Court has this morning ruled in favour of Ashers, a bakery in Northern Ireland which refused to make a cake iced with the slogan: ‘Support Gay Marriage’. A five-judge panel of Lady Hale, Lord Mance, Lord Kerr, Lord Hodge and Lady Black made the decision.
The Ashers owners, who are Christian, were sued in 2014 by gay rights activist Gareth Lee for discrimination on the grounds of sexual orientation and political beliefs. Having lost the initial case and the subsequent appeal, they took the case to the Supreme Court — and won. The key point made by the judges was that Ashers’ objection was to the message on the cake and not to Lee’s sexual orientation — as they ruled that it’s OK to refuse to promote gay marriage provided that you do not discriminate against gay people.
Human rights barrister Adam Wagner has been analysing the judgment.
The bakers in the gay cake case WON their appeal. Their objection was to message on the cake, not personal characteristics including sexual orientation or political opinion. They had rights to free expression and freedom of conscience not to express views they didn't agree with
— Adam Wagner (@AdamWagner1) October 10, 2018
2/ This is a significant judgment. Goes against grain of previous cases – the Supreme Court has drawn a line between refusing e.g. to provide a bed to a gay couple in a bed and breakfast and refusing to provide a service which would obliged to manifest beliefs one does not hold
— Adam Wagner (@AdamWagner1) October 10, 2018
3/ The question is where you draw the line. Does this mean a greeting card company would be able not to make cards for gay marriages as to do so would be to "manifest believes one does not hold"? How does that work, if the cards are in reality being used by others?
— Adam Wagner (@AdamWagner1) October 10, 2018
4/ Skimming the judgment, it appears that the central point is this. What the bakers were being asked to do by baking the cake with the pro-gay marriage message was manifest a belief which they didn't agree with. "One is free to believe and not to believe". pic.twitter.com/xba0yZe0BR
— Adam Wagner (@AdamWagner1) October 10, 2018
5/ The American concept of "compelled speech" has been influential, it would appear, though the word "compelled" only appears twice, once in the postscript. I think that's the big news in this judgment, on a brief reading. pic.twitter.com/FzIAZusgDd
— Adam Wagner (@AdamWagner1) October 10, 2018
6/ The difficult I have with the reasoning is that it's not clear to me why the provision of a service, baking a cake for someone else, in a private business, is equivalent to making soldiers swear a Christian oath they don't agree with.
— Adam Wagner (@AdamWagner1) October 10, 2018
7/ Does this now mean that business owners can refuse to fulfil orders which they disagree with on a moral level? Perhaps it does. But I'm not precisely sure why fulfilling an order for someone else is manifesting of speech.
— Adam Wagner (@AdamWagner1) October 10, 2018
8/ On the other hand, is it right to expect a religious baker to fulfil whatever order that is placed? What about a cake showing Jesus in a derogatory way? Or what about a Muslim baker being asked to make a cake for Tommy Robinson? It's not straightforward
— Adam Wagner (@AdamWagner1) October 10, 2018
9/ Important to also point out that the Court rejected the argument that the discrimination was on grounds of the sexual orientation or political belief *of the cake orderer" pic.twitter.com/FUApLY4PEt
— Adam Wagner (@AdamWagner1) October 10, 2018
10/ This is an unusual case for another reason – example of the 'horizontal' effect of the Human Rights Act, which doesn't usually apply in cases involving only private citizens (as opposed to the state and a private citizen, where the Human Rights Act usually 'bites') pic.twitter.com/Yeb0XAulcn
— Adam Wagner (@AdamWagner1) October 10, 2018
11/ Supreme Court took a similar approach to European Court of Human Rights did in the important Eweida case which partly involved a private company (British Airways). Basically, it brings in HRA because it has to 'read' Northern Irish equality law in line with convention rights
— Adam Wagner (@AdamWagner1) October 10, 2018
12/ An important subtext here, I think, is Lady Hale being President. She has long been an advocate, or semi-advocate, for religious believers being able to conscientiously object to doing things which don't sit with their religious beliefs https://t.co/e6qiHLiCDe pic.twitter.com/s6akVMdun3
— Adam Wagner (@AdamWagner1) October 10, 2018
13/ Here is what she said in a 2014 speech – that we can get the conscientious objection approach out of human rights law but not equalities law. Well, that is exactly what the court did in this case https://t.co/PgE6Wv0UgX pic.twitter.com/0rf5Wsj429
— Adam Wagner (@AdamWagner1) October 10, 2018
14/ It was all there to see in 2014! This 'musing' sentence is a kind of invitation to advocates to make the argument. And now they have and the Court has accepted it and we have the concept of "compelled speech" in English law. pic.twitter.com/RFRR4WyZrA
— Adam Wagner (@AdamWagner1) October 10, 2018
15/ Final thought – I think this judgment will be an important one for both freedom of speech & freedom of conscience. It will apply to workers who feel they are forced to "manifest" beliefs or customs they don't agree with. It's a v broad definition of what "manifest" could mean
— Adam Wagner (@AdamWagner1) October 10, 2018
16/ I'm going to be a bit naughty here. What about my children who, as Jews, are compelled (in effect) to take part in a Christmas show and sing Christmas songs? Isn't that compelled speech? *ducks* *waits for Daily Mail headline* *leaves Twitter*
— Adam Wagner (@AdamWagner1) October 10, 2018
The decision will have major implications for discrimination claims, but it seems that on this occasion Gareth Lee won’t be having his cake or eating it.
Read the judgment in full
Gay Cake Supreme Court Judgment by LegalCheek on Scribd
