Icing on the cake: Reflections on the Ashers Baking Company Case

In the recently-published Bulletin from Affinity's Social Issues Team, this article focusses on summarising the background, legal battles and possible implications arising from the recent Supreme Court ruling in favour of the Ashers Baking Company in the so-called 'gay cake' row.

Rod Badams does a remarkable job of bringing together in a few pages all the relevant details and highlights the legal principles established by the Supreme Court. But what does this mean for possible future challenges to Christian conscience? It may not all be plain sailing...

 

Icing on the Cake: Reflections on the Ashers Baking Company Case

When Gareth Lee called at a bakery in Royal Avenue, Belfast, in May 2014, to order a cake to take to a party, neither he, nor the staff who served him, could possibly have imagined that four years later (1,615 days, to be precise) the cake he wanted, but never received, would be the subject of a UK Supreme Court (UKSC) ruling which for several hours was reported as the lead item on BBC news bulletins.

After reflecting on Mr Lee’s order for a few days, the Ashers Baking Company (Ashers) informed Mr Lee that they could not supply the cake, and refunded the £36.50 he had paid. Mr Lee complained to the Equality Commission for Northern Ireland (ECNI), which pursued through the courts a discrimination claim against Ashers on Mr Lee’s behalf.

The case, which became known in the press as the ‘gay cake case’, attracted widespread media interest throughout the UK and beyond. Although press fascination was partly due to its unusual details, the case was also recognised as raising fundamental issues relating to discrimination law which had not previously been resolved.

The judgment of the UKSC, delivered on 10 October 2018, has now settled some of these issues.

The purpose of this present article is to outline the main facts of the case, and of the UKSC’s judgment, and to consider the significance and possible implications of the findings.  

1   The facts of the case and the judicial journey

When he ordered his cake, Mr Lee, a volunteer with QueerSpace, an LGBT community organisation in Belfast, had asked Ashers to ice it with the words Support Gay Marriage.  

Mr Lee wanted the cake for a party which QueerSpace was organising at Bangor Castle. When ordering the cake, Mr Lee had been served by Mrs Karen McArthur, a director of Ashers, and mother of Daniel McArthur, the bakery’s general manager. Her husband, Colin McArthur, is also a director. At the time of the order, Mrs McArthur raised no objection, as she wished to consider how to explain her objection, and to spare Mr Lee any embarrassment in the shop. However, over the following week-end, the McArthurs decided that they could not in conscience produce a cake with the slogan requested, and Mrs McArthur telephoned Mr Lee to apologise, explaining that Ashers was a Christian business and would not be able to fulfil the order.

After his order was cancelled, Mr Lee was able to obtain the cake he wanted from another supplier. Subsequently he complained to the Equality Commission for Northern Ireland (ECNI) about the failure of Ashers to fulfil his order. The ECNI supported him in bringing to court a civil claim against Ashers for discrimination on the grounds of sexual orientation, political opinion and religious belief.

The sexual orientation claim was made under the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (SORs), and the other two claims under the Fair Employment and Treatment Order 1998 (FETO).

The case was initially heard at the county court in Belfast by the Presiding District Jude, Isobel Brownlie, who on 19 May 2015 held that the failure of Ashers to complete the order amounted to discrimination on all three of the grounds in the claim. She awarded damages of £500. [15]

Ashers appealed to the Northern Ireland Court of Appeal (NICA), which on 24 October 2016 dismissed the company’s appeal. The Court held that the decision to refuse to supply the cake amounted to associative direct discrimination on the ground of sexual orientation. Having dismissed the appeal on that ground, the Court did not make any decision on the questions arising under the other two grounds. [16]

Following the dismissal of its appeal to the NICA, Ashers applied to the UK Supreme Court (UKSC) for permission to appeal to the UKSC. Permission was granted, and the case was heard on 1 and 2 May 2018.

In connection with the Ashers case, the UKSC also agreed to consider interventions  by the Attorney General for Northern Ireland (AGNI), Mr John Larkin QC. The AGNI’s interventions – legally known as references – questioned the constitutional validity of the SORs and FETO in respect of the case against Ashers. 

2   The issues at stake

The central issue which the UKSC was being asked to decide was whether the refusal of Ashers to supply Mr Lee with his requested cake amounted to unlawful discrimination under the SORs and/or FETO.

Paragraph 3(1) of the SORs and Article 28 of FETO define an offence of discrimination in identical terms: ‘A person (A) discriminates against another person (B) if (a) on grounds of sexual orientation, A treats B less favourably than he treats or would treat other persons…’ A further Regulation (5[1]) states: ‘It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a person who seeks to obtain or use those goods, facilities or services – (a) by refusing or deliberately omitting to provide him with any of them…’ [20, 39]

The District Judge had found that the conduct of Ashers had amounted to discrimination on the basis of the SORs, but she did not find that the bakery’s discrimination was because of Mr Lee’s actual or perceived sexual orientation. What she did find was that Ashers ‘cancelled the order because they oppose same sex marriage for the reason that they regard it as sinful and contrary to their genuinely held religious beliefs.’ [22]

The Court of Appeal held that the request for the words Support Gay Marriage to be iced on the cake meant that ‘this was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community’. In its view, this finding amounted to discrimination under the SORs, and it dismissed the appeal. [28]

At the Supreme Court, the judges needed to consider whether the findings of either or both of the lower courts were correct in law.

3   The Supreme Court’s findings

3.1  The issue of discrimination

The five judges of the Supreme Court found unanimously that in connection with the claim brought under the SOR, no discrimination had occurred. The judges found that neither Mrs McArthur nor any of the bakery’s staff were aware of Mr Lee’s sexual orientation, and that Ashers would have declined the order whoever had sought to place it. Their objection was to the wording being requested – support gay marriage – and not to anything about the particular purchaser: ‘The objection was to the message, not the messenger.’ [11, 22]

Commenting on the District Judge’s earlier conclusions as to the bakery’s reasons for cancelling the order, the UKSC’s judgment states: ‘To the extent that the District Judge held that the bakery had discriminated unlawfully because of its owners’ religious beliefs she was wrong to do so.’ [45]

In other words, a finding of unlawful discrimination can never be based on the beliefs of the perpetrator of the action complained of: ‘It is a well-established principle of equality law that the motive of the alleged discriminator is irrelevant.’ [43] The crucial issue which determines discrimination is whether an alleged discriminator (A) has treated a person (B) differently from other people on the basis of a protected characteristic of B or a person with whom B is associated. ‘By definition, direct discrimination is treating people differently.’ [23] In this case, no different treatment had taken place.

But the District Judge had also concluded that the message support gay marriage was indissociable from sexual orientation and therefore Ashers’ decision to cancel the order had amounted to discrimination against a person’s or a group of people’s sexual orientation. [25] Indissociability is a legal term meaning inseparably connected.

The UKSC rejected the District Judge’s finding of indissociability, on the grounds that the degree of association was nowhere near close enough. In its judgment, the UKSC stated: ‘People of all sexual orientations, gay, straight or bi-sexual, can and do support gay marriage. Support for gay marriage is not a proxy for any particular sexual orientation.’ [25]

In the lower courts, the Court of Appeal had followed similar reasoning to that of the District Judge, concluding that ‘the benefit from the message or slogan on the cake could only accrue to gay or bisexual people’ and therefore the decision to supply the cake amounted to discrimination by association. The UKSC’s judgment specifically denies this, stating: ‘It (the benefit from the message on the cake) could also accrue to the benefit of the children, the parents, the families and friends of gay people who wished to show their commitment to one another in marriage, as well as to the wider community who recognise the social benefits which such commitment can bring.’ [33]

The UKSC also specifically rejected the suggestion, implied by the Court of Appeal, that the reason for refusing to supply the cake was that Mr Lee was likely to associate with the gay community of which the McArthurs disapproved: ‘There was no evidence that the bakery had discriminated on that or any other prohibited ground in the past. The evidence was that they both employed and served gay people and treated them in a non-discriminatory way.’ [28] Mr Lee, a gay man, ‘was not personally known to the (Ashers) staff or to Mr and Mrs McArthur. He did not know anything about the McArthurs’ beliefs about marriage and neither they nor their staff knew of his sexual orientation.’ [11] 

3.2  The issue of compelled speech

Ashers’ legal team had argued throughout the case that if the law required Ashers Baking Company to express or endorse a view with which it profoundly disagreed, this would amount to ‘compelled speech’.

The issue of compelled speech did not arise in connection with the SOR claim, since the judges found there had been no discrimination on that ground. [35] However, it did need to be considered under the FETO claims, since the judges ruled that the slogan Support gay marriage was a political opinion under the FETO criteria [41], and Mr Lee was perceived as holding the opinion which he wanted on the cake. [48]

As the UKSC judgment put it: ‘By being required to produce the cake they (Ashers) were being required to express a message with which they deeply disagreed.’ [54]

If producing the cake with the wording requested was an absolute legal requirement in the circumstances of the case, then it would be beyond doubt that Ashers had acted unlawfully. However, there are rights contained in Articles 9 (freedom of thought, conscience and religion), and 10 (freedom of expression) of the European Convention on Human Rights (ECHR). These rights were incorporated into UK law by the Human Rights Act 1998, which also requires courts to take account of all other legislation in a manner which gives effect to the rights enshrined in the ECHR (insofar as it is possible to do so). The question for the UKSC in this case, therefore, was whether, in the circumstances, Article 9 and/or Article 10 rights protected the baking company from a finding of discrimination on the ground of Mr Lee’s political opinion or religious belief. It needs to be reiterated that it is only Mr Lee’s political opinion and religious belief that is relevant to a discrimination claim. Whatever the opinions and beliefs of the McArthur family, they are not material to the case.

The UKSC judgment makes clear that the two lower courts had misjudged either the legal discrimination criteria, or the impact of ECHR rights, or both. It says of the District Judge, who found against Ashers on all three grounds: ‘It is unfortunate that she referred to both religious beliefs and political opinions in making these findings, because there appears to have been no evidence of Mr Lee’s religious beliefs.’  Rather, the UKSC’s judgment suggests, her findings were based not on his political opinion, but on the McArthurs’ religious beliefs. [46]

On the issue of ‘compelled speech’, the District Judge had not accepted that in supplying the requested cake, Ashers were being required to promote and support the campaign for same sex marriage. Although ultimately it failed to make a decision on the FETO appeal, the Court of Appeal had appeared to agree with this, arguing that ‘the fact that a baker provides a cake for a particular team or portrays witches on a Halloween cake does not indicate support for either.’ [54]

The UKSC judgment rejected these arguments, finding, on the basis of the McArthurs’ rights under Article 9 (freedom of thought, conscience and religion), and Article 10 (freedom of expression) that FETO should not be ‘given effect in such a way as to compel providers of goods, facilities and services to express a message with which they disagree, unless justification is shown for doing so’. [56]

The bakery could not refuse to provide a cake – or any other of their products – to Mr Lee because he was a gay man or because he supported gay marriage. But that important fact does not amount to a justification for something completely different – obliging them to supply a cake iced with a message with which they profoundly disagree… They would be entitled to refuse to do that whatever the message conveyed by the icing on the cake – support for living in sin, support for a particular political party, support for a particular religious denomination. [55]

Mr Lee’s legal team had argued before the UKSC that a trading company did not have Convention rights. The UKSC agreed that this was so, but found that in this case ‘to hold the company liable when the McArthurs are not would effectively negate their (the McArthurs’) Convention rights’. [57]

4   The case’s consequences

4.1  Immediate reaction

Colin Hart, director of The Christian Institute, which has supported and advised Ashers throughout the four-and-a-half years of the legal journey, described the outcome of the case as ‘a landmark judgment for free speech’:

We are very thankful to God for this ruling. Our prayers have been answered. We are also greatly indebted to the McArthur family. It has not been easy for them, but their stand has created a UK precedent. [Christian Institute email to supporters, 10.10.2018]

Daniel McArthur, general manager of Ashers, said he was ‘delighted and relieved’ by the ruling:

We always knew we had not done anything wrong in turning down this order. After more than four years, the Supreme Court has now recognised that and we are very grateful to the judges and especially grateful to God. We are particularly pleased the Supreme Court emphatically accepted what we have said all alongwe did not turn down the order because of the person who made it, but because of the message itself. This ruling protects freedom of speech and freedom of conscience for everyone. [The Christian Institute website]

Gareth Lee, the complainant, expressed concern about the judgment:

This was never about a campaign or a statement. All I wanted was to order a cake in a shop that sold cakes to order. I paid my money, my money was taken and then a few days later it was refused. That made me feel like a second-class citizen. I’m concerned not just for the implications for myself and other gay people, but for every single one of us. [quoted by Cathy Gordon in The Scotsman, 11.10.2018]

He added: ‘I think this has consequences for everyone. Anyone can walk into a shop – you shouldn’t have to work out if you are going to be served based on their religious beliefs… Do we have to guess? I am confused.’ [quoted in The Independent, 11.10.2018]

The ECNI’s Chief Commissioner, Dr Michael Wardlow, was also disappointed with the outcome: ‘There is a concern that this judgment may raise uncertainty about the application of equality law in the commercial sphere…’ [Daily Mail, 11.10.2018]

Immediate press and media reaction to the UKSC findings was largely favourable. The overwhelming majority welcomed the outcome, a frequent comment being that it demonstrated ‘common sense’. Even the slightly more sceptical commentators objected more to what it regarded as the waste of money on both sides, rather than to the Court’s findings.

The most negative of the national press titles was The Independent, which, in spite of the judgment, continued to describe the circumstances of the case as ‘a clear case of discrimination’. [The Independent, 11.10.2018]

One of The Independent’s contributors, Ben Kelly (11.10.2018] wrote: ‘As a gay man from Northern Ireland, of course I feel disappointed by this story. It doesn’t feel nice to know there are people out there who don’t believe in your right to be equal.’

But that was not the view of all LGBT supporters. Peter Tatchell, campaigner and activist on behalf of LGBT rights, said:

This verdict is a victory for freedom of expression. Discrimination against LGBT people is wrong. But in a free society, people should be able to discriminate against ideas that they disagree with. I am glad the court upheld this important liberal principle. If the original judgment against Ashers had been upheld, it… would have set a dangerous, authoritarian precedent that could have been open to serious abuse. [Peter Tatchell, writing for the Peter Tatchell Foundation, 17.10.2018]

Andrew Pierce, an LGBT writer and campaigner, strongly supported the UKSC’s judgment:

Justice was done yesterday because forcing people to promote a cause they disagree with, especially in an overtly political context, is neither fair nor free. The true test of a free and democratic society is that competing views are debated, not crushed by an unaccountable government quango. [Daily Mail, 11.10.2018]

4.2  Longer-term implications

[i]  Implications for equality watchdogs

The Ashers case is bound to lead to some significant soul-searching by the Equality Commission for Northern Ireland, which has faced a deluge of criticism following the judgment. Several of its actions have been called into question – its decision to take the case through the courts, the huge expenditure it has been willing to commit to it, and its failure to defend the protected religious belief characteristic of the McArthurs while championing the protected LGBT characteristic of Mr Lee.

Reaction in the printed media has been largely scathing. The Daily Mail commented [Comment, 11.10.2018]: ‘How sickening that by funding the case, the Northern Ireland Equality Commission has cost taxpayers £500,000. Are there really so few genuine cases of bigotry in Northern Ireland that it has to spend our cash on trivialities?’

In a letter to The Guardian [13.10.2018], Jonathan Longstaff asked:

Would it not have been fairer if the taxpayer-funded Equality Commission for Northern Ireland had funded both parties in sorting out the correct interpretation of the equality legislation as to whether or not forcing someone to make a statement with which they disagree is discrimination? Could it be seen that the commission discriminated in funding only one party?

The financial hit taken by the ECNI is likely to become an issue again when the UKSC determines what, if any, costs order to make, and the precise liability of the ECNI becomes known.

Ross Clark, political commentator of the Daily Express, [12.10.2018] accused the ECNI and the lower courts of having ‘invented a law of their own’ and the equality industry of ‘aggressively promoting the interests of particular minority groups’.

He added:

A true liberal position is to support gay marriage but also support the right of people to hold views against gay marriage. That ought to have been the starting point for the Equality Commission when it came to considering Lee’s case against Ashers. It is sad – and needlessly provocative – that it ended up being dragged through the courts.

More significant than all the flak from the press will be the criticism of the ECNI implied by the UKSC itself in its judgment. Supreme Court judgments are always worded with impeccable courtesy and entirely lacking in gratuitous criticism. But in this judgment, it chose to make a specific point in connection with whether the approach of the ECNI to the case had been fair:

The Court of Appeal expressed some concern that the correspondence between the ECNI and the baking company may have created the impression that the ECNI was not interested in assisting members of the faith community when they found themselves in difficulties as a result of their deeply held religious beliefs. It is obviously necessary for a body such as the ECNI to offer its services to all people who may need them because of a protected characteristic and not to give the impression of favouring one such characteristic over others. [14]

Later in the UKSC judgment, the judges acknowledged that service providers do not always treat everyone with equal dignity and respect, but went on to say:

It is deeply humiliating and an affront to human dignity to deny someone a service because of that person’s race, gender, disability, sexual orientation or any of the other protected personal characteristics. But that is not what happened in this case and it does the project of equal treatment no favours to seek to extend it beyond its proper scope. [35]

In the context in which the UKSC made that statement, it is not clear who the Court was judging to have ‘extended it beyond its proper scope’ – the District Judge, the Court of Appeal or the legal team representing Mr Lee and the ECNI.  It could be any or all three of these.

Some politicians in Northern Ireland have called for an investigation into the way in which the ECNI operates, or for the resignation if its Chief Commissioner. At the very least, it is obvious that the ECNI needs to review its policy assumptions and strategies in the light of the emphatic clarity of the UKSC’s legal decisions in the Ashers case. But in view of the widespread public criticism of the way it has approached the case, it is also essential that its present liberal campaigning culture is replaced by an objective and dispassionate defence of all the protected characteristics, on an equal basis, which is what it was set up to do.       

Although this was a case brought by the ECNI, the findings will have an influence on the Equality and Human Rights Commission which oversees equality and human rights issues in the rest of the UK.

(ii)  Implications for the law and society in Britain

The immediate reaction of those who opposed Ashers was to claim that the UKSC’s findings had created ‘confusion’ and ‘uncertainty’ in connection with discrimination law.   

Dr Michael Wardlaw, Chief Commissioner of the ECNI, for instance, commented:

There is a concern that this judgment may raise uncertainty about what businesses can do and what customers may expect; and that the beliefs of business owners may take precedence over a customer’s equality rights, which in our view is contrary to what the legislature intended. [Daily Mail, 11.10.2018]

The above statement by Dr Wardlaw is very revealing of the existing mindset in the ECNI. It needs to be considered a statement at a time:

‘There is a concern that this judgment may raise uncertainty about what businesses can do…

This statement reflects a wholly inaccurate view of the case. The judgment raises no uncertainty about what businesses can do. On the contrary, it eliminates uncertainty. It clarifies that businesses cannot treat differently a person who has a protected characteristic, but that they are not required by the law, in the circumstances of the Ashers case, to express a message with which they disagree. 

….and what customers may expect…

This is Mr Lee’s complaint in the light of the UKSC judgment. He is concerned that whenever he walks into a shop he will never know whether he is going to be refused service. He is right to an extent. The UKSC judgment means that there are circumstances in which he can legitimately be refused service. However, this risk would only apply if he was asking for something to be done which bore a message, for example a T-shirt, a printing order, or a cake with iced wording. In each of these cases, he would always know that it was possible his order might be turned down. If this amounts to ‘uncertainty’, it is a very limited form of it.

It would be no different from my calling at a print shop to ask for a quantity of church text cards for 2019 displaying the verse For God did not send his Son into the world to condemn the world, but in order that the world might be saved through him [John 3:17]. How would I react if the printer told me that he was a Muslim, and had a policy of not printing anything which conflicted with his own religion, as my text certainly did? Far from making me feel like a ‘second-class citizen’, for me, it would be an exhilarating experience. I would rejoice that I lived in a country where belief and conscience are allowed to trump convenience and compulsory conformity. The minor hindrance of having to go to another printer would be a light affliction by comparison. 

…and that the beliefs of business owners may take precedence over a customer’s equality rights, which in our view is contrary to what the legislature intended.’

This is a misrepresentation of discrimination law. Dr Wardlaw may hold a particular view or conjecture about ‘what the legislature intended’, but there are no grounds at all for his holding such a view or conjecture. The law in question is not about the possibility of the beliefs of business owners taking precedence over a customer’s equality rights. In fact, the UKSC judgment clearly stated that it is not about the beliefs of business owners at all. This is discrimination law, whose only criterion is whether a person – in this case a business – has treated different people differently. Dr Wardlaw may think he has insight into what the legislature intended, in which case he ought to address the question of why the legislature did not incorporate that intention into the law they were enacting. Dr Wardlaw’s real gripe is not that the Supreme Court judges have come to the wrong decision – although that is what he is saying. His real problem is that the law in question does not contain the provisions which he would like to see applied to Mr Lee’s cake order. 

Dr Wardlaw’s difficulties seem to be an example of social liberalism’s incredulity. What really irks him is not that the law has not been made clear, but how the Supreme Court can possibly have not found in favour of the liberal agenda, irrespective of what the law actually says. Social liberalism seems powerless to recognise that its agenda does not have an automatic right to succeed. The law is the law, and the desire of a particular interest group is not the law. That is the blind spot which risks bringing increasing gloom to the whole nation.

A completely different view of the outcome of the Ashers case is represented by a wide range of columnists, commentators and lawyers, of which the following are examples:

[This case] was about the right of each one of us – gay or straight, religious or secular, right or left – to choose our own beliefs and hold to them, without the strong, authoritarian arm of the state reaching in to batter us into submission. [Fionola Meredith, Belfast Telegraph, 11.10.2018]

Had this case been decided the other way, it would have struck a crippling blow to freedom of expression, effectively enabling the government to force private citizens to create messages with which they fundamentally disagree. [Paul Coleman, a solicitor and executive director of ADF International, a human rights organisation defending the right of people freely to live out their faith, writing in Spiked, 17.10.2018].]

The issue at stake was not just about special protection for Christians. The truth is, if the McArthurs had lost, freedom of conscience would have been under threat, by order of the state. [Andrew Pierce, Daily Mail, 11.10.2018]

(iii)  The future for freedom of expression

It is right to rejoice both over the Supreme Court’s findings and their ongoing implications. There are several actual or potential positives resulting from the case:

  • Anyone providing goods, facilities or services can lawfully refuse to supply these in circumstances which would involve endorsing a message.
  • The Ashers case is sure to be quoted in future cases involving discrimination where any form of compelled speech may be involved; but the case is likely to be referred to in future judgments in a much wider range of cases – those in which any of the principles relevant to the Ashers case, relating to discrimination or freedom rights, will be in issue.
  • The case, because of its extensive publicity and the straightforwardness of the issues involved, has brought the hitherto neglected issues of freedom of conscience and freedom of expression into the centre of discussion.
  • It is possible that the unanimous and clear UKSC judgment in the Ashers case will have a positive effect on politicians, and their legal advisers, and the whole of the Establishment, in connection with future legislation, and lead to a greater regard for individual freedom in public policy.  

However, this is no time for bridled euphoria. The case has also reminded us that prior to the Ashers judgment, respect for Article 9 and Article 10 freedoms had sunk to a low point. A number of current commentators view the present and the future with foreboding and pessimism:

The case is emblematic of a growing intolerance towards deeply held Christian beliefs which is rarely applied to other religions. [leader, The Daily Telegraph, 11.10.2018]

People who disagree with gay marriage may be kicked out of jobs in education, social work, the Prison Service and so on (entirely wrongly). The Ashers verdict may mean that those people cannot yet be forced to expunge their minds of their beliefs and credos. [There is an authoritarianism which carries a] determination to not merely police what we do, but what we think. Because what we think is, for them, not simply wrong – which of course it may well be – but evil and deserving of punishment. It is an absolutism that is entirely free of compassion, tolerance and decency. It is the politics of the gulag… [Rod Liddle, The Sunday Times, 14.10.2018]

Peter Hitchens, writing in The Mail on Sunday [14.10.2018] was equally angry, indignant and pessimistic:

This political persecution of a Christian business was obviously unjustified from the start, and the lower courts which permitted it should be ashamed of themselves. It was all about forcing someone to express an opinion he did not hold, by baking a cake supporting same-sex marriage. No free society could allow someone to be coerced into doing that… The default position on such things in this country is still repressive and intolerant, as anyone in the public sector, and especially in the state schools, knows very well.

The fact that, throughout the Ashers case, the ECNI was paying so little heed to the Article 9 and Article 10 rights of the McArthurs is an indication that freedom of conscience is a value which no longer seems to be highly regarded as a protected right or in government policy.

This has been further borne out by the lower profile now given to freedom of expression. It doesn’t appear at all in the widely used current government definition of ‘British values’.  

There is an ironic downside to the outcome of the Ashers case. Given that the UKSC finding is so clear, there will be little chance of the liberal agenda believing that it can gain any further ground on the basis of existing law. This means that there is a risk that politicians may be put under pressure to make changes to existing law, to bring about the equality and conformity reforms sought by social liberalism. This can only be achieved by measures which further restrict freedom of thought, conscience and religion, and freedom of expression.

(iv)  Implications for the Christian constituency

Before Christians are carried away by the unexpected favourable outcome of the Ashers case, it is important to be clear on what its outcome does NOT mean:

  • The case has not granted Christians, or anyone else, the right to discriminate against anyone who has a protected characteristic.  
  • The judgment does not establish a ‘conscience clause’ exempting anyone from a legal requirement on the ground of a conscientious objection. ‘Conscience’ is not the basis for the UKSC’s finding. The Court’s finding is applicable to any message with which the service-provider disagrees.

In addition, as in any case, the UKSC findings only apply for certain to the facts and circumstances of the particular case being judged, and the Ashers judgment needs to be viewed with that in mind. Any other case, however similar, may have slightly different facts or circumstances which may bring other issues into play, which could affect the outcome. For instance, some messages may be so closely identified with a group with a particular protected characteristic that to refuse to supply it may amount to discrimination. In the Ashers case, the judges ruled that the link of the message Support gay marriage was not exclusive enough to the gay community.

It is nonetheless good to rejoice over the emphatic and unanimous judgment in the Ashers case; and to be thankful to God for the initial stance and the subsequent consistency and steadfastness of the McArthur family, and for God’s upholding of them throughout their four-and-a-half years of constant publicity and pressure. We should be grateful also for the tenacity, and for the careful and caring strategic decisions and advice of The Christian Institute on behalf of the baking company and the McArthur family.

But a more important need is to recognise that it was necessary to bring this case.

At first glance it may seem that the one aim throughout the case has been to defend the McArthurs and Ashers and to try to achieve a favourable outcome for them at each stage of the legal journey. That aim was not absent from the original motive, but it is simply a by-product of the true aim, which was to clarify what the law is in the UK, in relation to the circumstances in which discrimination can legally be held to have occurred, and over the issue of compelled speech.

Had there been no appeal to the Court of Appeal, the findings in the case would have remained those of the District Judge of the County Court, who found that discrimination had taken place on all three grounds claimed – sexual orientation, political opinion and religious belief. Had there been no appeal to the UKSC, the findings would have remained those of the Court of Appeal, which, though some of its reasoning was different from that of the County Court, nonetheless dismissed the appeal by Ashers. Without the case coming to the UKSC, the verdict would forever have been that the baking company had discriminated against Mr Lee, and the Court of Appeal’s inaccurate definition of association, and its other errors, could have been argued in other cases.

The defence of the Ashers case was not motivated, as some have alleged, by the desire of Christians to ‘defend their corner’. The motive is much bigger than that – a desire to challenge injustice, to clarify the law in the interests of everyone, and to seek to uphold the righteousness of God in every human domain. It is certainly potentially an expensive exercise, but justice does not have a price. 

The freedoms God has given to man ought not to be removed or denied in the interests of political ideology, and those principles of creation need to be declared and defended, alongside the preaching of the gospel.       

Note: The numbers in brackets throughout the above article are paragraph numbers in the UKSC judgment.

Rod Badams

Rod Badams was a journalist for 11 years, before serving as General Secretary of Christians at Work from 1979 to 1998. He was FIEC Administrator from 1998 to 2011 and editor of The Bulletin from 2006-2015.

(This article was originally published in the Affinity Social Issues Bulletin for November 2018. The whole edition can be found at www.affinity.org.uk)

The Social Issues Team publishes The Bulletin three times each year, containing information about current issues relevant to churches and Christians.

A PDF of this article is available to download here.

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The Bulletin - November 2018

 


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