Thursday 27 October 2016

'Gay cake' row was much more than a storm in a tea cup

Published 20/05/2015 | 02:30

Daniel and Amy McArthur of Ashers Baking Company
Daniel and Amy McArthur of Ashers Baking Company

Ashers Baking Company is a family-owned business that has been in the cake-baking trade since 1992.

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The Belfast-headquartered firm has six branches, a staff of up to 80, net assets of over £1m (€1.4m) and an online service that distributes its delicious dainties throughout Britain and Ireland.

Its owners, Colin and Karen McArthur, are Christians who oppose same-sex marriage, as many committed Christians in my native Northern Ireland do. The McArthurs have genuine and deeply held religious beliefs that - according to God's law - homosexual acts are sinful.

And, believing that their business must be run by God's wishes, they declined to bake a cake for Gareth Lee, a gay man who ordered a cake featuring 'Sesame Street' puppets Bert and Ernie with the slogan "Support Gay Marriage".

The cake, ordered and paid for by Lee, a volunteer with 'QueerSpace' - an organisation for the North's LGBT community - was for a private function last year marking International Anti-Homophobia Day. But the refusal by Ashers to bake the cake sparked an unholy row, which yesterday led the County Court in Belfast to rule that Ashers unlawfully discriminated against Mr Lee on grounds of sexual discrimination.

Ashers had cancelled the order, as they oppose same-sex marriage.

At first glance, the "gay cake" row seems like a colossal battle between freedom of conscience and religious belief on the one hand, and protection of sexual orientation on the other.

And coming days ahead of the Republic's Marriage Equality Referendum, it has been seized upon by opponents of the poll as a dire sign of things to come this side of the Border if it passes.

However, that narrative does not serve the issues well.

The issue of same-sex marriage is a sensitive one in Northern Ireland. Its assembly has, on four separate occasions now, refused to introduce same-sex marriage - despite it being wholly legal in England, Scotland and Wales. This is not the only issue on which the North deviates from the rest of the UK: the 1967 Abortion Act, for example, does not apply there.

It is partly because of sensitivities surrounding same-sex marriage that the North's equality legislation makes exemptions to organisations that practice, advance or teach religion. But the exemptions do not apply to for-profit businesses like Ashers whose main purpose is, in strict commercial terms, mammon, not God. All commercial businesses must accept the public as a whole, no matter how it is constituted.

Just as hotels, for example, can't turn away people if they are old, disabled or black, businesses in Northern Ireland - who can turn down business from any source - can't use sexual orientation for turning business down as that flies in the face of equality regulations there.

In a 41-page ruling handed down yesterday, District Judge Isobel Brownlie ruled that the Ashers are conducting a business for profit, notwithstanding their genuine beliefs, and therefore are not exempted. Judge Brownlie acknowledged fully the McArthurs' religious beliefs that gay marriage is sinful, but said they are in the business of supplying services to all. After a detailed review of the factual matrix in the case - and a superb review of relevant national, European and international case law - Judge Brownlie found that Ashers was contracted on a commercial basis to bake and ice the cake with lawful graphics.

The judge told the court she believed if a heterosexual person had ordered a cake with graphics promoting "heterosexual marriage" or simply "marriage", the order would have been fulfilled. "I have no doubt that such a cake would have been provided. It is the word gay that the defendants took exception to," said Judge Brownlie.

The judge also observed that if Mr Lee was a gay baker and the McArthurs wanted him to bake a cake with the words "support heterosexual marriage," he would be required under the same laws to do so. These types of cases have been popping up all over the world where equal rights for gay people have been advanced - and resisted.

The lesson from the "gay cake" debate is that whilst people are entitled to hold their genuine and deeply held beliefs, business owners can't use those beliefs to discriminate against others in the commercial sphere.

The ruling and the civil laws underpinning it seem, in my view, a reasonable accommodation between religious belief and human rights.

Irish Independent

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