No sexual orientation discrimination in declining to make a “gay cake”

The UK Supreme Court has now ruled that the Ashers Bakery in Northern Ireland was not guilty of sexual orientation discrimination by politely declining to bake a cake decorated with a message in support of same sex marriage- see Lee v Ashers Baking Company Ltd [2018] UKSC 49 (10 Oct 2018). This is an important decision illustrating the clear difference between a decision based on someone’s personal characteristics, and a refusal to support a specific message.

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Update on 2016 Law and Religion issues and preview for 2017

It seems a good time of the year to take stock of the current status of some important Law and Religion issues discussed this year, and to flag some upcoming issues for the New Year.

A. Same Sex Marriage

1. Making the change in Australia?

As previously noted, the Government’s foreshadowed plebiscite on whether marriage should be redefined to extend the status to same-sex couples will probably not be going ahead, given the legislation was defeated in the Senate. Someone living under a rock for a year or so, reading that comment, might have supposed that this meant there was a “conservative” majority in the Upper House which was opposed to the change. Of course the opposite is ironically the case; the generally conservative Liberal/National Coalition were putting forward the plebiscite as a way of achieving the change (a change supported by the current Prime Minister and other Cabinet ministers), but the legislation was defeated by an informal coalition of “progressive” parties and independents who would also like to see the change made, but seem to fear that the majority of the Australian people might not agree with them. (To be fair, the stated reason for opposition was the impact of the plebiscite on same sex attracted persons. There is a lot of debate about whether such an impact was likely, given, for example, positive comments about the referendum on the same matter in Ireland.)

Their strategy now is to seek in 2017 to somehow put pressure on the Government to allow a “conscience” vote on the matter in the Parliament. Again, this is full of irony. The major opposition party, the ALP, has in fact formally ruled out a “conscience” vote on the issue for their own members after the next election, one of whom at least has been forced to resign over the matter. But they are in favour of a conscience vote for their political opponents, banking on the fact that enough of them disagree with their party’s current policy to provide a majority in both the lower and upper Houses of Parliament.

The major problem with this strategy is that the current Government were elected, and in particular it seems clear that the current Prime Minister was elected as leader by his party, on the basis that the only way the reform could be made was if it were supported at a plebiscite of the Australian public. Unless some individual MP’s could be persuaded to break with the party and cross the floor, it seems unlikely that the current Government will support a mere Parliamentary vote.

Where this leaves the issue at the next election is still unclear. Will the Government change its platform? Its majority at the moment is wafer-thin, and it might be thought that there are a number of sitting members who are both popular enough in their electorates to win even without party endorsement, and passionately opposed to changing the traditional meaning of marriage, to make any attempt to change policy on the issue very dangerous. Of course it seems that if the ALP wins office the change would be made- but again, the Australian electorate (consciously or not) tends to not give their Governments a Senate majority, and so there could be no guarantees that an ALP government could get same sex marriage legislation through the Senate. All in all, interesting times.

2. Protecting Religious Freedom if there is a change

Should same sex marriage be introduced, one of the major concerns of religious groups and individual believers is whether religious freedom in this area will be protected. I have summarised many of these issues in a paper delivered earlier this year (and you can even watch a video of the presentation should you now be over being “entertained” by Christmas fare!) In short, there are some protections for religious freedom provided in the draft amending legislation which was intended to be presented if the plebiscite had succeeded. But in my view the protections in the draft Bill did not go far enough.

In fact, for those who are interested in this area, the Senate before breaking up this year for Christmas appointed a Select Committee to look into the Bill: the “Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill“. It invites submissions on the Bill by the very tight deadline of 13 January 2017. I encourage folk to have a look and see if there are things they want to draw to the attention of the Committee. (I have made a submission already; the general matters raised were similar to those I mentioned in my previous blog post on the draft legislation.)

One of the areas where there will be continued debate on the issues is the ability of ordinary believers in the “wedding industry” to decline to offer services in support of same sex ceremonies. I mention the current status of a couple of these cases overseas below. While I feel I have said this many times before, since those who distort the motives of believers involved in this case continue to do so, it bears repeating: the people involved in these cases are not arguing for a general right to deny all services to same sex attracted persons! They are simply saying that, when they are asked to engage their creative skills in a specific way, in celebration of a same sex relationship which their religion tells them is contrary to God’s will, they cannot do so. That is an area which will continue to be contested.

3. Wedding Industry cases

On this blog I have previously mentioned a number of cases where believers have been sued and required to pay damages, or undergo “training”, because they have declined to provide services for a same sex ceremony. Three of those cases are still before the courts at a high level and further proceedings are likely in 2017.

(a) The Ashers “Gay Cake” case

I discussed the latest substantive court proceedings (in October) in this case, where Belfast bakers have been penalised for not providing a cake with a motto and picture in support of same sex marriage, previously. After the Northern Ireland Court of Appeal upheld an order for damages imposed on the bakers (and note that no actual wedding was involved, this cake was simply requested for a political event urging that the law be changed!), that court on 21 dec 2016 formally denied an application for leave to appeal to the UK Supreme Court. However, the Ashers still have a right to make their own application for leave to appeal, direct to the Supreme Court, and they have indicated that they will be doing so in the New Year.

My take is that the Supreme Court, if it grants leave to appeal, may well overturn the decisions of the Northern Irish courts. The many press articles, even from normally “progressive” outlets, decrying the decision illustrate that many people feel that this is a case where free speech is being attacked without the justification of it causing specific emotional or other harm to a couple planning to be married. The fact that the decision was even challenged by the Northern Ireland Attorney-General demonstrates this as well. Still, there is always some uncertainty in this area, so it will be very interesting to see the outcome.

(b) The “Hands On Originals” Gay T-shirt case

A decision from the US which was handed down some time ago concerns similar issues. In  Hands on Originals, Inc v Lexington-Fayette Urban County Human Rights Commission (Fayette Circuit Court, Civil Branch, 3rd Div, Ky; Civil Action No 14-CI-04474; James D Ishmael Jr, J; 27 April 2015), a T-shirt printer was found to be entitled to decline to support a message of “Gay Pride” (see my previous comment in “Cakes, t-shirts and religious freedom- an update“, April 28, 2015). This was one of the few such cases in the US where the religious freedom of the service provider had been protected; again, like the Ashers case, it did not involve an actual same sex ceremony, so was more clearly a case of free speech being challenged with a failure to support a popular cause.

Despite the length of time since the original decision, an appeal against this decision was heard on Dec 13, 2016 before the Kentucky Court of Appeals- see here for the excellent resource centre on the case supplied by ADF, the attorneys acting for the small business. This local news report suggests that the appeal decision may be handed down within 90 days.

(c) The Masterpiece cake case

In Craig v Masterpiece Cakeshop, Inc., ___ P3d ___, ___, 2015 WL 4760453, *6, 2015 Colo App LEXIS 1217, *15-18 [2015] the Colorado Court of Appeals upheld the decision of a lower tribunal to impose a penalty on Jack Phillips, owner of Masterpiece Cakeshop, for declining to produce a cake for a same sex commitment ceremony. To quote the ADF summary:

That decision ordered Jack Phillips and his staff at Masterpiece Cakeshop to create cakes for same-sex celebrations. The decision also ordered Phillips to comply with Colorado’s Anti-Discrimination Act by re-educating his staff and filing quarterly “compliance” reports for two years.

After the Colorado Supreme Court by majority refused to accept an application for leave to appeal, a petition for a “writ of certiorari” (request for leave to appeal) was filed with the US Supreme Court on 22 July 2016. The petition has not yet been heard, and this may mean that it will need to be dealt with by the Supreme Court after the next appointment is made by the incoming Trump administration. The latest information from a key Supreme Court tracking blog indicates that the case might be discussed at a “conference” considering pending petitions on Jan 6, 2017, but it seems very unlikely that it will be disposed of before the new administration takes over. Who will be the 9th Justice appointed to replace Scalia J, of course, is unknown, but it seems likely that it will be a “conservative”, and hence there may be a majority on the Court to at least give the appeal a hearing.

B. Religious Freedom generally

Protection of religious freedom, of course, is a much broader issue than what may flow from recognition of same sex marriage. Here I just mention briefly some updates on previous matters, and another Parliamentary inquiry.

1. Updates on transgender rights issues

In my earlier blog, “Bathrooms and discrimination” (April 24, 2016) I mentioned that the State of North Carolina had generated controversy by passing legislation, generally called “HB2” (officially the Public Facilities Privacy & Security Act (“PFPSA”)), specifying that in multiple occupancy public bathrooms only those whose birth certificated indicated they were male, could use male bathrooms, and only those whose birth certificates indicated they were female, could use female bathrooms. This legislation was in response to an ordinance passed by the city council of Charlotte, the capital, which required all bathrooms to be available, apparently,  to all genders. In particular it was seen as allowing those who “identify” as a gender opposite to their biological sex to use the bathroom set apart for that gender, regardless of whether they had undergone surgical or other treatments to allow their birth certificate to be changed. (While many may object to these laws, in particular these sort of laws raise long-term religious freedom issues for believers in religious traditions such as Christianity, which clearly states that male and female are exclusive categories and should not be confused.)

In recent days, after an election which saw a Democrat Governor take office in North Carolina, there were negotiations between the city council and the State legislature after which a deal seems to have been reached that the city would repeal the relevant changes to its ordinance, and the State would repeal HB2. However, recent press reports suggest that while the city has repealed its ordinance, the legislature in a special session leading up to Christmas could not agree to repeal the Act: see “HB2 Stays: North Carolina Lawmakers Decline to Repeal Controversial Anti-LGBTQ ‘Bathroom’ Bill” (Dec 21, 2016). Clearly the debates will continue- there seems to be some indication that the repeal of the city ordinance was conditional on the legislation being repealed by Dec 31, so the whole debate may be re-ignited in the New Year.

In that earlier blog post I also mentioned litigation, G G v Gloucester County School Board, in which an injunction had been granted to require a local school to allow a student born biologically female, who now identified as male, to use the boy’s bathroom (see this decision of the United States Court of Appeal for the Fourth Circuit, handed down on April 19, 2016). However, on August 3, 2016 the US Supreme Court issued a “stay” order halting the implementation of the lower court’s injunction while a petition for certiorari (application for leave to appeal) is being considered. This slightly unusual step suggests that at least four of the current 8 Justices consider the appeal to have merit. The current schedule for hearings means, as noted at the Supreme Court monitor “SCOTUSblog”, that the application for certiorari may not now be heard until March or April ( “increasing the chances that a ninth justice may have taken the bench by the time the case is argued.”) In addition, since the case revolves around an interpretation of a statute provided by an Obama administration official, the arrival of the new administration on January 20 may see that interpretation changed, and the matter may then need to be referred back to the lower courts to account for the change.

Clearly the question of transgender rights is going to continue to be a major issue in the coming year, in the US, the UK and in Australia. For those who are interested in some resources which outline the issues and present important scientific information challenging some of the common popular assumptions about this area, I recommend the following for further reading:

  • for Australia, where the so-called “safe schools” program continues to generate controversy, an important paper by Professor Patrick Parkinson from Sydney Law School reviews the literature: see “The Controversy over the Safe Schools Program – Finding the Sensible Centre” (September 14, 2016). Sydney Law School Research Paper No. 16/83. Available at SSRN: https://ssrn.com/abstract=2839084 or http://dx.doi.org/10.2139/ssrn.2839084.
  • from the UK, a recent paper from the Christian Institute helpfully outlines many of the issues: see “Transsexualism” (2016), with a link at the end to supporting literature;
  • released earlier in the year, this lengthy study from the journal New Atlantis (Fall, 2016) “Sexuality and Gender: Findings from the Biological, Psychological and Social Sciences“, by Dr Lawrence S Meyer and Dr Paul R McHugh, is a goldmine of a literature review on the area. From the summary: “this report shows that some of the most frequently heard claims about sexuality and gender are not supported by scientific evidence. The report has a special focus on the higher rates of mental health problems among LGBT populations, and it questions the scientific basis of trends in the treatment of children who do not identify with their biological sex. More effort is called for to provide these people with the understanding, care, and support they need to lead healthy, flourishing lives.”
  • and from Australia again, an important paper by Professor John Whitehall from Western Sydney University: “Gender Dysphoria and Surgical Abuse” Quadrant (Dec 2016).

2. Another important Parliamentary Inquiry

Finally, worth noting that the Federal Parliamentary Joint Standing Committee on Foreign Affairs, Defence and Trade is conducting a summer inquiry, “Inquiry into the status of the human right to freedom of religion or belief“. The terms of reference are very broad:

The Committee shall examine the status of the freedom of religion or belief (as recognised in Article 18 of the International Covenant on Civil and Political Rights) around the world, including in Australia. The Committee shall have particular regard to:

  1. The enjoyment of freedom of religion or belief globally, the nature and extent of violations and abuses of this right and the causes of those violations or abuses;
  2. Action taken by governments, international organisations, national human rights institutions, and non-government organisations to protect the freedom of religion or belief, promote religious tolerance, and prevent violations or abuses of this right;
  3. The relationship between the freedom of religion or belief and other human rights, and the implications of constraints on the freedom of religion or belief for the enjoyment of other universal human rights;
  4. Australian efforts, including those of Federal, State and Territory governments and non-government organisations, to protect and promote the freedom of religion or belief in Australia and around the world, including in the Indo-Pacific region.

The inquiry should have regard to developments since the Committee last reported on Australia’s efforts to promote and protect freedom of religion or belief in November 2000.

The nature of the Committee, and aspects of the terms of reference, suggest that overseas developments are its main focus. However, it also includes Australia as part of its remit. These are important topics, and again there is a tight deadline for submissions to close, on Friday, 10 February 2017. I will be aiming to put in a submission, and I encourage others to do so as well.

Well, this “brief” review has already been too long, so I will finish there and wish all those who read all the best for the New Year, when it looks like there will continue to be lots of material on Law and Religion to talk about!

The Ashers “Gay Cake” appeal- one of these things is not like the others

When our children were watching Sesame Street one of the regular clips featured the song “one of these things is not like the others“, training children to look carefully and make distinctions where things are different. In a case involving Bert and Ernie from Sesame Street, the Northern Ireland Court of Appeal has shown that it is not very good at making distinctions between things that are different.

The case is Lee v McArthur, McArthur & Ashers Baking Co Ltd [2016] NICA (24 October 2016). (Thanks to the always helpful Law and Religion UK blog for the link to the official report. There is an “official summary” available here which is a bit shorter.) In the decision the Court of Appeal equates the decision of Christian bakers not to supply a cake, the sole purpose of which was to bear a message which they disagreed with on religious grounds, with a decision of a business to discriminate against persons on the grounds of their sexual orientation. In my view they have confused things which are quite different to each other.

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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.