Thanks to Peter Ould for this guest post on the judgement in the Ashers Bakers case:
The judgement on the private case in Northern Ireland between Gareth Lee (from Queerspace) and Ashers Bakers has been delivered and it’s an absolute corker.
Some background first. This private case (not a criminal case so any talk of the defendants being found “guilty” is incorrect) centres around the refusal of Ashers Bakers to bake and decorate a cake with the slogan “Support Gay Marriage”. The plaintiff, who had previously bought baked items at Ashers (and this will become relevant later) placed the order initially on the 9th of May, but only came in with the actual design on the 12th. It was at this point the order was refused. The plaintiff claimed that he had been discriminated against on the grounds of his support for gay marriage and his sexuality. In their defence, the bakers claimed that they were unaware of the plaintiff’s sexuality and that the decision to turn down the order was based solely on the political campaign that was involved (to legalise gay marriage in Northern Ireland).
None of this is disputed. What I now want to do is focus on some key paragraphs in the judge’s ruling and then to add one more reflection around the nature of defence in this and similar cases.
The first point in the ruling where the judge makes a judgement is paragraph 39. Here Judge Brownlie writes,
I find, on the evidence before me, that the Defendants did have the knowledge or perception that the Plaintiff was gay and /or associated with others who are gay. The reasons for this finding are that the Defendants must have known that the Plaintiff supported gay marriage and/or associated with others who supported gay marriage as this was a cake for a special event the Plaintiff was attending; it was known to the 3rd Defendant that the Plaintiff was a member of a small volunteer group; he wanted his own graphics on the cake; those graphics included ‘support gay marriage’ together with a reference to ‘QueerSpace’ and the 3rd Defendant was aware of the ongoing debate on same-sex marriage. Furthermore, although from her own evidence she said that she didn’t think “perhaps we have to do it” [meaning complete the order], it is clear when she discussed the issue with her son on the Sunday, she mentioned that there may be litigation.
I agree with the judge here – it is at least reasonable that the defendants might have suspected that the plaintiff was gay. That said, none of what follows is necessarily contingent – just because I know (or presume) that someone is gay, doesn’t necessitate that I will discriminate on that basis.
The next paragraph that requires comment is paragraph 42.
In applying the reasoning from the authorities cited, it is my view that, if a comparator is required, the correct comparator is a heterosexual person placing an order for a cake with the graphics either “Support Marriage” or “Support Heterosexual Marriage.”
What is required is proof of a factual matrix of less favourable treatment on the ground of sexual orientation and not the motive. 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.
This ruling beggars belief. Is the judge seriously suggesting that all gay people support gay marriage? Is support for same sex marriage really indissociable from sexual orientation? This seems to be an assertion that is demonstrably untrue in that there are plenty of LGB people who do not support the introduction of gay marriage. This argument is used to reject the comparison that Ashers would have refused the order if placed by a “straight” person but it seems specious at best. Clearly there are grounds for appeal on the basis of a basic point of information, that sexual orientation and support for same-sex marriage are not indissociable at all.
Now we turn to paragraph 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.
I discussed this point on previous rulings in this area. If same sex marriage is by its nature a union of people having a particular sexual orientation, does that mean that other sex marriage is also by its nature a union of people with a particular sexual orientation (namely heterosexuality)? The judge seems to think so. If we can find numerous examples of other sex marriages between couples where one or even both partners have a homosexual orientation, does the whole premise that same-sex marriage is a “gay thing” also fall apart? And note, there is nothing wrong in a ruling that argues that same-sex marriage would predominantly appeal to those of a homosexual orientation, but that is not the same as saying that it is an institution only entered into by those of a homosexual orientation (and vice versa for other sex marriage). This ruling seems to go beyond previous judgements that have taken the “reasonable to presume” argument and instead infers a direct and exclusive link between sexual orientation and marriage (other sex and same sex). As above with paragraph 42, the judge seems to consider a point of fact that all those of a homosexual orientation desire same sex, not other sex marriage.
Furthermore, the statement “Same sex marriage is inextricably linked to sexual relations between same sex couples which is a union of persons having a particular sexual orientation” makes absolutely no sense in the Northern Ireland context. In the Province same sex marriage is not legal and proposals to make it so have been defeated three times in Stormont. Same sex marriage does not exist in Northern Ireland. To argue that a view of supporting it or not is grounds for discrimination is tantamount to the judge saying that same sex marriage should be legal in the Province. Given that it is not legal, why should this proposal to change the law be given any preference in the courts over any other proposed legislation? The ruling reads almost as though same sex marriage is legal in Northern Ireland.
One might even suggest (as someone has privately to me this afternoon) that this interpretation of the law and the test the judge applies in paragraphs 42 and 43 would make it illegal to vote against same sex marriage! Certainly this is the kind of thinking, this test, that has driven judicial activism in same sex marriage in the USA.
It’s also worth a quick diversion here into the world of the Church of England. There are some that argue that clergy who enter into a same sex marriage are not necessarily entering a sexual union and therefore not undermining the Church’s doctrine of sex and marriage. Clearly in this case in Northern Ireland assumes that marriage is a sexual union and one predicated in part on sexual desire. One cannot support this ruling and yet argue that clergy entering same sex marriages cannot be presumed to be in a sexual union. That would be, forgive the pun, having one’s cake and eating it.
So far we have seen that the basis for a claim of direct discrimination in this ruling is based in an assumption of the plaintiff’s sexuality based upon his support for same sex marriage. The “indissociable” link between support for same sex marriage and sexual orientation is key to the rejection of the defence that Ashers Bakers would have turned down a similar request from a straight customer. It should be understood that the ruling hinges on this – remove the “indissociable” link and you remove the justification for rejecting the “the sexuality of the person placing the order was irrelevant” defence.
The ruling however then turns to whether the order could have been rejected simply on the basis of it being a political slogan – “Support Gay Marriage”. Here we enter even more disturbing territory in paragraphs 66 and 67.
 Have the Defendants directly discriminated against the Plaintiff on the ground of religious belief and/or political opinion contrary to Article 3(2) of the 1998 Order? I find that they have. Applying the reasoning in Gill v NICEM, the 2nd and 3rd Defendants disagreed with the religious belief and political opinion held by the Plaintiff with regard to a change in the law to permit gay marriage and, accordingly, by their refusal to provide the services sought, treated the Plaintiff less favourably contrary to the law. If the Plaintiff had chosen graphics which said “support heterosexual marriage” or “support marriage” or if a heterosexual had ordered a cake with graphics “support heterosexual marriage” I am satisfied that the Defendants would have completed the order and would have had every right to do so. It is for the reason that the Defendants objected to the word ‘gay’ as they are totally opposed to same-sex marriage which they regard as sinful that they refused the order.
 If I had been persuaded by the Defendants submission that they were not aware of the Plaintiff’s religious belief and/or political opinion or the religious beliefs and political opinion of those with whom he associates, I would in any event have found that the Defendants discriminated against the Plaintiff and treated him less favourably on the grounds of their own religious beliefs and political opinion – see authorities cited in para  - – the’ Ryder’ case as applied in ‘Gill”. The Defendants have accepted that the order was cancelled because of their religious beliefs because they are opposed to a change in the law regarding gay marriage which they regard as sinful.
The case Gill cited refers to 1998 Fair Employment and Treatment Order in Northern Ireland which outlaws discrimination against someone on the basis of their political party or ideology. The reason for this in the Northern Ireland context is clear – you need to protect Unionists and Republicans from being refused goods and services simply on the basis of their political loyalty (and rightly so). But is it a correct application of the Order to suggest that any provider of any publication or artwork of any kind must fulfil whatever political slogan they are asked to produce? In the rest of the United Kingdom this is not the case – a printer for example can refuse to produce material for a political party (s)he opposes. In Northern Ireland however that is not the case.
Is this blanket ban on refusing to produce political messaging you don’t agree with really good law? Do we really want a world where an Afro-Caribbean printer is forced to produce posters with the slogan “Repeal the Race Relations Act Now”? Should a bakery owned by a gay couple be forced to make “traditional marriage” cupcakes?
The judge’s application of section 3(2) of the 1998 Order can have no other interpretation. If this ruling is not appealed and overturned then , when cited in future cases, it means that the mere holding of any political opinion, however egregious that opinion is (“Enslave all Black People Now”), entitles a person or organisation to demand of any other organisation that they produce or publish material supporting that cause. One cannot in response argue that the cause being promoted is offensive and contrary to current law and that is why it is refused – how would the court judge between acceptable and unacceptable political opinions? Would “Repeal the Equality Act” become an intrinsically illegal statement? What does that say about the power of any legislature not to be bound by previous decisions of that legislature? What kind of constitutional nightmare is that?
The saying “be careful what you wish for, you may just get it” is apt in this case. If the judge has incorrectly interpreted the law in Northern Ireland then the interpretation needs to be overturned on appeal. If the judge has correctly interpreted the law then the Northern Irish law is, my friends, an ass of colossal proportions and some form of reasonable accommodation amendment needs to be enacted sooner rather than later, for without such an accommodation the consequences for any provider of goods and services in Northern Ireland are obvious.
One final thought. The defence publicity around this case has centred on the “right” of the bakers to discriminate on the basis of their religious beliefs – Paragraphs 14 and 15 lay out the religious basis for the refusal to bake and decorate the cake. In reality, this case has nothing to do with religious belief and everything to do with political beliefs and so the use of religious belief in the support of the defendants is counter-productive. That the political belief (“no to same sex marriage”) is predicated on a religious foundation is irrelevant to the decision not to provide the goods and services – an atheist opposed to same sex marriage might very well have made the same decision on political grounds.
That being the case, why was this case framed in a “religion vs sexuality” basis? There seems an alarming trend with the Christian Institute and Christian Concern to get this conflicting rights paradigm in the public imagination, even at the cost of justice for their clients. Wouldn’t it be better to simply defend their clients with the best possible argument, rather than a political defence attempting to raise consciousness of “competing rights”, especially in a case where one of those competing rights (religion) is utterly irrelevant to the issue at hand?
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