Sesame Street and the Gay Cake

In a previous post I mentioned a series of cases raising the question as to whether Christian business owners who declined to provide their services to support same sex weddings, were guilty of sexual orientation discrimination. (Answer so far: Yes.) In that post I mentioned a case involving bakers in Northern Ireland which at the time had not come before the courts. The decision in that case, Lee v Ashers Baking Co Ltd [2015] NICty 2 (19 May 2015) has now been handed down.

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Mr Lee is a member of the “Queerspace” group in Northern Ireland, which had been campaigning for legislative change recognising same sex marriage there (Northern Ireland, while a part of Great Britain, has its own legislature and has not followed the lead of England and adopted same sex marriage.) Shortly after the third debate on the issue in the Assembly, which had rejected proposals for change, he went into the Ashers cake shop and ordered a cake to use at an event marking the celebration of gay rights. (Interestingly the judge describes the event at [6] as “to mark the political momentum towards legislation for same-sex marriage”, an interesting use of the word “momentum” as all the votes that had been held up to that point had rejected the proposal; indeed, since the events at issue in this case there has been a fourth vote on the matter which has also failed.)

He asked for the cake to be made featuring a picture of “Bert and Ernie”, two popular muppets from the children’s show Sesame Street (despite the fact that the producers of the show have previously clearly indicated that Bert and Ernie are not romantically involved!) Ignoring possible copyright issues, the bakers declined to make the cake on the more important grounds that they were Christians who took the Biblical views of appropriate sexual behaviour seriously, and that they were being asked to devote their cake-making skills to a message with which they fundamentally disagreed. With the apparent support of the local human rights organisation, Mr Lee took an action for discrimination against the bakers, alleging both sexual orientation discrimination and also the somewhat unusual category of “political viewpoint” discrimination.

Since this blog is about “law and religion” rather than politics (!), I won’t spend much time on this second ground. I gather that this ground is not very common as a basis for discrimination, and was introduced in Northern Ireland mainly as a result of the very deep-seated resentments between the main political forces in that area after many years of violence and hatred. The difficulty of a prohibition of discrimination on political viewpoint grounds, of course, is that it opens up the question of whether people are free to make decisions on the basis that they disagree with someone’s politics or not.

The UK Human Rights blog, experts in this area, comment as follows on this aspect of the case:

It seems Ashers Bakery were inevitably going to lose this case, on the basis that they directly discriminated on grounds of political opinion. This form of anti-discrimination law is unique to Northern Ireland and designed to deal with the particular problem of someone being treated unfavourably because of their Unionist or Nationalist views. However, the Order is drafted widely enough that it included Mr Lee’s campaigning for same-sex marriage, so the decision that the refusal to bake the cake was discrimination on grounds of political opinion must be correct. This does have the strange effect that, whilst the Northern Ireland Assembly have repeatedly refused to legalise same-sex marriage, it is nevertheless illegal to refuse to bake a cake in support of it!

To turn to the other alleged ground of discrimination, essentially the claim here is similar to that made in the other “wedding industry” cases noted previously, that by refusing to support same sex marriage as an institution, the bakers have treated the customer less favourably than others, and hence have discriminated on the grounds of sexual orientation. District Judge Brownlie said:

[36] I [accept] the Plaintiff’s submission that same-sex marriage is or should be regarded as a union between persons having a sexual orientation and that if a person refused to provide a service on that ground then they were discriminating on grounds of sexual orientation.

With respect, her Honour really does not, in my view, give proper weight to the argument that the bakers, as they claimed, were not discriminating against Mr Lee as a person, but were declining to give their support to the message he wanted to convey, which was, literally, “Support Gay Marriage”. But her Honour’s response was that this was not important:

 [40] Additionally, I do not accept the Defendants submissions that what the Plaintiff wanted them to do would require them to promote and support gay marriage which is contrary to their deeply held religious beliefs. Much as I acknowledge fully their religious belief is that gay marriage is sinful, they are in a business supplying services to all, however constituted. The law requires them to do just that, subject to the graphic being lawful and not contrary to the terms and conditions of the company. There appears to have been no consideration given to any other measures such as the non – Christian decorator icing the cake or, alternatively, sub-contracting this order.

For reasons which remain obscure, even on multiple readings, her Honour said that the relevant “comparator” (for the purposes of determining whether sexual orientation discrimination had taken place) was not to consider the situation of a heterosexual person who wanted to order the same cake, but instead to compare the refusal to supply the cake here with how they would have responded to “a heterosexual person placing an order for a cake with the graphics either “Support Marriage” or “Support Heterosexual Marriage””- see [42]. The only explanation that seems possible for this comparison seems to be supplied by the very telling comment her Honour goes on to make:

I regard the criterion to be “support for same sex marriage” which is indissociable from sexual orientation. There is also an exact correspondence between the advantage conferred and the disadvantage imposed in supporting one and not the other.

In Bressol v Gouvernement de la Commaunite Francaise Case [2010] ECR 1-2735, para 56, [2010] 3CMLR 559:

“I take there to be direct discrimination when the category of those receiving a certain advantage and the category of those suffering a correlative disadvantage coincide exactly with the respective categories of persons distinguished only by applying a prohibited classification”.[43] My finding is that the Defendants cancelled this order as they oppose same sex marriage for the reason that they regard it as sinful and contrary to their genuinely held religious beliefs. Same sex marriage is inextricably linked to sexual relations between same sex couples which is a union of persons having a particular sexual orientation. The Plaintiff did not share the particular religious and political opinion which confines marriage to heterosexual orientation. (emphasis added)

The comment can only be read as saying that discrimination here is unlawful because the class of persons who support same sex marriage is identical to the class of persons who are of homosexual sexual orientation. The problem is, of course, is that this comment is palpably false. Again, let me quote the UK Human Rights blog, a source which has never been known to be overly given to conservative views:

[T]he judge’s findings in relation to discrimination on grounds of sexual orientation do not make much sense. One key misstep appears to be that she conflates support for same-sex marriage with a homosexual orientation, when they are clearly different things. Many people who are not gay (including the Prime Minister) support same-sex marriage. Some people who are gay (including Rupert Everett and Dolce and Gabbana) oppose same-sex marriage.

To the list of people who are gay and do not support same sex marriage we may add some homosexual commentators in the Republic of Ireland in the lead-up to the recent referendum in that country.

Still, having found that anyone who opposes same sex marriage must be opposed to homosexual persons (the implications of this equation), it is not surprising that the Judge found that the bakers had discriminated on the basis of sexual orientation.

Assuming that this was the result required by the regulations, her Honour went on, as she was required to, to consider whether the regulations then were inconsistent with the principles of the European Convention on Human Rights. In particular article 9 of the ECHR requires recognition of freedom of religion, subject to limitations which are prescribed by law, intended to achieve a legitimate objective, and ‘necessary in a democratic society’ – see [74]. The regulations clearly qualified as law, and clearly the removal of unjust discrimination against homosexual persons is a legitimate objective. But was it “necessary” to do so by requiring religious believers to support a message completely at odds with their fundamental beliefs?

Indeed, her Honour was taken to a Canadian case where an Ontario court had held that a printer who was required to undertake printing for a same sex support group, would not be required to print material which was in direct conflict with his core religious beliefs. The decision in Brockie v Ontario Human Rights Commission [2002] 22 DLR (4th) 174 was clearly relevant. (Interestingly, Brockie was cited with approval by Redlich J in dissent in the Australian decision in Christian Youth Camps Limited & Ors v Cobaw Community Health Services Limited & Ors [2014] VSCA 75 (16 April 2014) at, e.g., para [544].For comment on this case, which raises many of the same issues as being discussed here, see my earlier paper.)

However, Brockie  was rejected as being applicable here- see [90]. Partly this came back to the view that the bakers had not been required to “support, promote or endorse any viewpoint”- see [95]. With respect, this again seems wrong. While can perhaps understand a view that says that providing a wedding cake is not to “endorse” the marriage (although even this seems dubious), it needs to be remembered here that this was not a wedding cake. The sole purpose of the cake as requested was to bear a message of support for the institution of “gay marriage”. While of course it would also be eaten, there is no doubt that Ashers would have been more than happy to provide a cake simply to be eaten. But what they were asked to do, contrary to their fundamental beliefs, was to create an artistic creation carrying this message. There was no attempt here to undertake a process of “balancing”, or to consider the harm of acting against conscience with the harm of having to go down the road to another baker.

It may be recalled that other courts have been willing to find differently in similar cases. I have in previous posts referred to an Australian decision holding that it is possible to distinguish between sexual orientation on the one hand, and behaviour motivated by that orientation on the other; and to a recent US decision on almost identical facts to the Asher case (save that a T-shirt is not a cake) where the court ruled that religious freedom protection applied when asked to support a homosexual lifestyle. It is to be hoped that if the decision in Lee v Ashers goes on appeal some of these other matters may lead to a different decision.

It may be thought that decisions are simply minor issues. Clearly they are not minor for those who have been caught up in them, either facing fines or large amounts in legal fees to defend their right to not only live, but to conduct business in accordance with their deepest life commitments. And in a broader sense they raise important questions about whether those who differ from the current moral orthodoxy will be allowed to operate in the public sphere at all. As a recent press report notes, in some cases even where a service is provided, the mere fact that the business operator simply does not approve of the wedding ceremony will be enough to generate outrage. The law ought to be clear- in a plural society, we have to accept that some others in the community will disagree with our lifestyle choices, and where they do us no other harm, to allow them to do so.

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