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Religious Tolerance logo

2016-FEB to OCT: Northern Ireland:

"Freedom to discriminate" court case
involving a cake celebrating gay marriage.

Case is appealed to the Court of Appeals.
Ashers Bakery loses again but will appeal further.

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Part 4 of four parts

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 Lesbian brides

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This topic is continued here from the previous essay

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Case appealed to the Court of Appeals:

On 2015-MAY-19, District Judge Isobel Brownlie of the Belfast County Court had ruled that Ashers Bakery had violated the anti-discrimination laws in Northern Ireland when they refused to make a cake for a customer, Gareth Lee, that included a pro-gay marriage slogan.The Ashers Baking Company launched an appeal of the case to the Court of Appeals.

The court was prepared to hear the case on 2016-FEB-03 when the Attorney General, John Larkin QC, intervened. He adjourned the hearing because of a possible conflict between Northern Ireland's existing equality legislation and European human rights laws.

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Daniel McArthur, general manager of Ashers Bakery, said:

"We were fully prepared for the hearing to go ahead and arrived this morning in full expectation it would do so. However, developments have taken place which are clearly out of our control due to the decision by the Attorney General to intervene. Clearly, our case raises matters of crucial importance if he has taken a decision to become involved."

"We have every confidence in our legal team and the arguments which were to be put forward and we had also clearly placed our trust, as always, in God. While the delay means it will be exactly two years to the day that the order was placed which led to the case, we are patient people and will now await the next stage in the process and remain confident that our case is right and just. ..."

"We believe the County Court got the original ruling wrong. Ashers does not discriminate against anyone. We took issue with the message on the cake not [with] the customer. And as a family we believe we should retain the freedom to decline business that would force us to promote a cause with which we disagree."

As Christians we can't simply switch off our faith as we enter the workplace in the morning. ..."

"Today we appeal to the Lord Chief Justice and colleagues to overturn the county court ruling, we appeal to them to recognize there is a big difference between refusing to serve someone because of their sexual orientation or political opinion and choosing not to endorse those ideas." 1

The Appeals Court consisted of Northern Ireland’s Lord Chief Justice, Sir Declan Morgan, Lord Justice Weatherup, and Lord Justice Weir. Lord Chief Justice Morgan said that the sudden adjourning was:

"... most unfortunate. ... We have all tried to see if we could proceed with the case, given the amount of work that has been done. It seems to us that it is simply not possible to do that without running into some risk of fairness in the hearing. We are not going to proceed with the hearing today.

The Court of Appeal scheduled a meeting in 2016-MAR to clear up the possible conflict, and rescheduled the hearing to 2016-MAY. 1

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2016-MAY-09: Court of Appeal hears testimony:

Daniel McArthur of Ashers Bakery said before the hearing that:

"The Attorney General's involvement confirms there are big issues at stake. This was never just a case about one little bakery in Belfast. It's always had implications for freedom of expression throughout the UK." 2

Michael Wardlow is the Chief Commissioner of the NI Equality Commission. His group laid the original charge against Ashers Bakery. Before the hearing, he said:

"This is case about a man who walked into a shop two years ago and didn't get the service that he would expect. And I don't want Northern Ireland to be a lottery where when we go into a shop or ask for a service that we have to second-guess the conscience or value base of the service provider." 2

Northern Ireland's Attorney General John Larkin QC testified at the hearing that:

"No one should be forced to be the mouthpiece for someone else's views when they are opposed to their own -– whether in print or in icing sugar. ... The wrong occurs, and can amount to cruelty, to make someone say something fundamentally at variance with their political opinion or religious views." 3

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2015-OCT-24: The Court of Appeal in Belfast issued its ruling:

Ashers Bakery lost its appeal. The Court upheld the lower court decision by District Judge Isobel Brownlie of the Belfast County Court issued on 2015-MAY-19.

Northern Ireland’s Lord Chief Justice, Sir Declan Morgan, delivered the decision. He rejected the core of the bakery's case. That was: if the company were to bake the cake as specified, it would have been seen as endorsing the message on the cake.

He also said that Ashers Bakery had:

"... as a matter of law discriminated against the respondent directly on the grounds of sexual orientation contrary to the Equality Act (Sexual Orientation) Regulations 2006. ..."

The "[cake] supplier may provide the particular service to all or to none but not to a selection of customers based on prohibited grounds. In the present case the appellants might elect not to provide a service that involves any religious or political message. What they may not do is provide a service that only reflects their own political or religious message in relation to sexual orientation."

The judges said in their ruling that:

"The fact that a baker provides a cake for a particular team or portrays witches on a Halloween cake does not indicate any support for either. ...""

"We accept that it was the use of the word 'gay' in the context of the message which prevented the order from being fulfilled.

The reason that the order was cancelled was that the appellants would not provide a cake with a message supporting a right to marry for those of a particular sexual orientation.

This was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community." 5

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Reactions to the Court of Appeals verdict:

After the ruling was issued:

  • Daniel McArthur of Ashers Bakery said:

    "This ruling undermines democratic freedom, religious freedom, and freedom of speech. If equality law means people can be punished for politely refusing to support other people's causes then equality law needs to change."

    "We had served Mr Lee before and we would be happy to serve him again. "The judges accepted that we did not know that Mr Lee was gay and that he was not the reason we declined the order. We have always said it was not about the customer, it was about the message." 5

  • Gareth Lee, who originally placed an order for the cake, said:

    "The only thing that I would like to say is I’m relieved and very grateful to the Court of Appeal for the judgment."

  • John O’Doherty, the director of the LGBT-positive Rainbow Project, said:

    "Ashers Baking Company entered into a contractual agreement to make this cake and then changed their mind. Sympathetic as some may be to the position in which the company finds itself, this does not change the facts of the case. The judgment clearly articulated that this is direct discrimination for which there can be no justification. ..."

    "We once again extend the hand of friendship to all people of faith, churches and families. We would encourage faith leaders to engage with our community to ensure better relations and to develop trust and respect between our overlapping communities for the betterment of our society."

  • Peter Tatchell, Director of the Peter Tatchell Foundation, a pro-human rights group, said:

    "This verdict is a defeat for freedom of expression. As well as meaning that Ashers can be legally forced to aid the promotion of same-sex marriage, it also implies that gay bakers could be forced by law to decorate cakes with homophobic slogans,

    “It seems that businesses cannot now lawfully refuse a customer’s request to propagate a message, even if it is a sexist, xenophobic or anti-gay message and even if the business has a conscientious objection to it.

    “Although I strongly disagree with Ashers opposition to marriage equality, in a free society neither they nor anyone else should be compelled to facilitate a political idea that they oppose.

    “Ashers did not discriminate against the customer, Gareth Lee, because he was gay. They objected to the message he wanted on the cake: ‘Support gay marriage.’

    “Discrimination against LGBT people is wrong and is rightly unlawful. But in a free society, people should be able to discriminate against ideas they disagree with. I am saddened that the court did not reach the same conclusion.

    “The judgement opens a can of worms. It means that a Muslim printer could be obliged to publish cartoons of Mohammed and a Jewish printer could be required to publish a book that propagates Holocaust denial. It could also encourage far right extremists to demand that bakers and other service providers facilitate the promotion of anti-immigrant and anti-Muslim opinions.

    “What the court has decided sets a dangerous, authoritarian precedent that is open to serious abuse.

    “Discrimination against people should be illegal but not discrimination against ideas and opinions,” said Mr Tatchell.

  • Jim Wells, a former Democratic Unionist minister in the Northern Island Assembly said that the ruling was:

    "... an awful decision”.

    He also said that the bakery would be launching an appeal before the Supreme Court in London. If that court upholds the decisions of the lower courts, the next step may be an appeal to the European Court of Human Rights (ECHR) in Strasbourg, France.

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More developments are probable.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Harru Farley, "Ashers Bakery appeal suspended after dramatic intervention," Christianity Today, 2016-FEB-03, at: http://www.christiantoday.com/
  2. Mark Woods, "Ashers in court today for 'gay cake' appeal hearing," Christianity Today, 2016-MAY-09, at: http://www.christiantoday.com/
  3. "N.Ireland attorney general on Ashers' gay cake case: 'No one should be forced to be mouthpiece for someone else's views'," Christian Times, 2016-MAY-15, at: http://www.christiantimes.com/
  4. Henry McDonald, " 'Gay cake' row: born-again Christian bakers lose court appeal," The Guardian, 2016-OCT-24, at: https://www.theguardian.com/
  5. " 'Gay cake' appeal: Christian bakers Ashers lose appeal," BBC News, 2016-OCT-24, at: http://www.bbc.com/
  6. "Peter Tatchell: 'Ashers ‘gay cake’ verdict is defeat for freedom of expression'," The Gay Say, 2016-OCT-24, at: https://thegaysay.com/

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How you may have arrived here:

Home > Religious Freedom > Freedom to Discriminate > N. Ireland > here

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Home > Human rights > Rel. Freedom > Freedom to Discriminate > N. Ireland > here

Home>Hot rel. topics>Homosexuality/Bisexuality>Discriminate>N. Ireland > here

Home > "Hot" religious topics > Homosexuality/Bisexuality > Media > N. Ireland > here

 Home > Transgender topics > N. Ireland > here

 Home > "Hot" topics > Transgender topics > N. Ireland > here

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Copyright © 2016 by Ontario Consultants on Religious Tolerance
Original posting: 2016-OCT-27
Latest update : 2016-OCT-31
Author: B.A. Robinson

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