Why the Ashers ‘gay cake’ ruling is wrong in law

ashers-image-hqIn 2014, gay rights activist Gareth Lee approached Ashers Bakery in Northern Ireland, run by evangelical Christians the McArthur family, and said he wanted to order a cake depicting the Sesame Street characters Bert and Ernie below the motto ‘Support gay marriage’ for an event to mark International Day Against Homophobia. The bakery refused—not on the grounds that Lee was gay (he was already a regular customer whom they had served before) but because they did not agree with the slogan and therefore felt they could not in conscience produce the slogan for the cake.

On Monday of this week, the court of appeal in Belfast upheld a previous judgment last year that Ashers Bakery had discriminated against a customer on the grounds of sexual orientation. The family-owned firm was also ordered to pay £500 compensation to Lee, whose legal action was backed by the Equality Commission for Northern Ireland.

The original Ashers case received international attention, and highlighting the tensions between gay rights reformers and the politically influential and socially conservative Christian lobby within Northern Ireland, and the responses to the appeal court judgement have divided sharply along these lines. But there is one rather surprising voice amongst critics of the decision: the vocal gay rights activist Peter Tatchell, who believes this judgement is both wrong and dangerous.

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. 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.

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.

It might not surprise us that the Telegraph also believed that the ruling was a mistake, but from a different political stable the Guardian agreed.

They were being asked to make a statement in favour of gay marriage with which they profoundly disagreed. And here they ought to have had the right to disagree. It may seem that writing in icing on a cake is a trivial form of expression compared to, say, writing in a national newspaper. But it is still the clear expression of an opinion, and that is something that should not be compelled any more than it should be suppressed.

And Tatchell is not the only gay man who thinks this ruling is wrong.

There are some pretty silly laws on the UK’s statute books. But the Court of Appeal in Belfast has today confirmed one that might be the silliest of the lot: if you’re a gay man, you’re now legally entitled to force a devout Christian to bake you a cake. I am a gay man. I support equality under the law for people of all sexual and gender inclinations. More to the point, I love cake. Nonetheless, I’m siding with the Christians. This gay plaintiff is wrong; the law is wrong. Nobody should be forced by law to bake anybody else a cake. Ever.

My friend Richard O’Dair, who is an employment law barrister, explains why this ruling is (he believes) mistaken in law.


The recent decision of the Court of Appeal in Northern Ireland Court of Appeal in Lee v Ashers Bakery is wrong, as was the previous decision of Supreme Court in Bull v Head because in order that existing law be compliant with the Human Rights Act it ought to be permissible to discriminate in the provision of good and services if:

  1. The discrimination is based on the alleged discriminators religious beliefs;
  2. The refusal to provide the service was private and respectful;
  3. The alleged victim can obtain the service elsewhere with little difficulty.

The contrary view amounts to finding the legislature can have a legitimate aim of pursuing a goal (the protection of gay rights) regardless of the proportionality of the steps taken and the harm to the rights and freedoms of others. The rest of this note explains why this was so.

Background: the decision the Supreme Court in Bull v. Hall

In this case Christian hoteliers were held guilty of directly discriminating in the provision of goods and service directly against a gay couple when they imposed a requirement that any couple wanting to share a room in their premises must be married. A striking feature of the case was that the couple were able to obtain accommodation elsewhere.

A majority of the Supreme Court held that this was direct discrimination against the gay community because it that time gay marriage was not recognized in English Law. The relevant regulations had to be read so as to be subject to the Human Rights Act in particular article 9 on Freedom of Religion but the Supreme Court held that that made no difference. Parliament was entitled to come to the conclusion that the protection of the rights of the gay community required the hoteliers’ rights to give way.

The Court of Appeal decision in Ashers

In this case the Appellants were bakers who refused to supply a cake contained a message supportive of the campaign within Norther Ireland for gay marriage. A striking feature of the case was the cake was easily obtained elsewhere.

The NI Court of Appeal held that this was direct discrimination on the grounds of sexual orientation whether or not the customer was gay. In other words, the result would the same even if the customer was a heterosexual supporter of gay rights. This was because such a person would be associated with homosexuals and therefore be protected by the legislation. The concept of associative discrimination was relied upon.

The Court considered whether, in order to make the legislation compliant with the Human Rights Act, the regulations should be read as containing an exception in the case such as this where the alleged discrimination was expression of religious belief (Article 9) or a manifestation of freedom of speech (Article 10). The Court said that no such exception was necessary. The Legislature had already balanced the conflicting rights of gay and religious communities and come down in favour of the former.

As to freedom of speech, the Ashers relied on negative freedom of speech ie the freedom not to be forced to speak out in favour of a cause you do not believe in. The Court held that the Ashers were not speaking at all. No one would think the Ashers by baking the cake were personally endorsing the message.


The decision in Asher is part flawed for the same reasons as Bull was and remains flawed. The heart of the problem facing the Courts in Bull and Asher is clear. Article 9 protects the freedom not only to believe but also to manifest that belief i.e. live it out. It is engaged by working as an employee as the ECHR held in Eweida so it must also be engaged by self-employment.

There can be no doubt that the Regulations do, when read naturally, prohibit what the defendants did in Bull and Eweida. But there can equally be no doubt that the very same regulations restrict the defendants’ freedom of religion. The question is whether that restriction is justified as a proportionate means of achieving a legitimate end namely the protection of the freedom of the gay community. The answer to the Supreme Court in Bull and the NI Court of Appeal in Asher was Yes.

But why is the answer “Yes”? It cannot be because Parliament has said so, because the role of the Courts in human rights cases is supposed to be ensure that Parliament does not infringe fundamental rights. Moreover, the Courts seems to have assumed that Parliament is entitled to makes its aim the protection of a particular group regardless of the cost to the rights and freedom of others. In other words, Parliament is entitled to say we have chosen to act without regard to the concept of proportionality. That cannot be right.

Moreover, in considering proportionality, a decision-maker must always consider whether there are alternative means of achieving the goal. If the goal is ensuring access to services for the LGBT community, why cannot that goal be achieved by the amendment set out at the start of this article?

Further Problems With Asher

As a decision on direct discrimination the decision seems plain wrong. The Ashers would have treated a heterosexual campaigner for gay rights the same way. The Court seeks to escape from this by relying on the concept of associative discrimination. The decision seems to be a flawed extension of the existing law on associated discrimination because the only real association between the victim and a gay person is in fact ideological – that they share the same views about gay rights. Thus the real objection to the Ashers conduct was that they were discriminating on the grounds of belief and that is was what was found by the District Judge in the County Court. The Northern Ireland Court of Appeal did not find it necessary to rule on this.

However, this simply raises the question of why the Asher’s should not be allowed to discriminate on the basis of Mr Lee’s beliefs if this was required by their own beliefs. The regulations preventing discrimination on the grounds of religion or belief in NI did not on their face allow this. But this simply raised the question of why an exception was not necessary in order to make the section complaint with Articles 9 and 10 of the ECHR.

If this is not so a freelance Muslim cameraman would presumably not be entitled to refuse a contract to help make a film which ridicules the prophet. It is striking that the concerns set out in this comment are shared by Peter Tatchell the veteran Gay Rights Campaigner (as mentioned above).

If we are entering a context where someone’s ‘association’ with a protected characteristic is ideological rather than actual, and that direct discrimination includes disagreeing with an idea rather than a person, is it possible to resist Peter Ould’s conclusion that we are now in the realm of ‘thoughtcrime’?

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66 thoughts on “Why the Ashers ‘gay cake’ ruling is wrong in law”

  1. Thanks again for a careful and calm article.

    While I appreciate the attempt to polish the law to make a specific accommodation for cases such as the Ashers, I believe what is needed in law is an unadulterated right to freedom of association which precludes state and third party interference other than contract arbitration.

    The West is skewing authoritarian and the state must be constrained.

  2. I agree.

    Peter Ould does put it very well: this is policing thought and ideology, not action, and the warning signs have been there for a while. I note that neither Peter or Ian describe being ‘surprised’ by the ruling, because I sincerely doubt they are.

    Here are three questions though.

    First, how likely is it, and/or how soon do you think it will be, before a case such as your hypothetical Muslim cameraman becomes a reality in the court? I’m sure such a circumstance exists already, but with the publicity of this ruling will things change…are the “thought police” more likely to litigate now?

    The second question is if the UK government does decide to follow the route (post brexit) of adopting a British bill of rights and asserting the sovereignty of our judicial system in place of the ECHR, are we likely to see this change?

    The third question is do you see this as a defeat for religious liberty/freedom of expression only, or would you say it was wider than that? The worries you list (understandably) are of a religious nature, hence the example you picked, but do you think the same will be felt in the secular sphere?

    In any case, thank you for a stimulating article.

    • Hi Mat- might be helpful for you to know that the UK will not be leaving the ECHR. It’s not one of the European Treaties that constitutes the EU. It’s a separate thing, with a separate membership, and its own court which is not the European Court of Justice. So we still get the benefit of it.

      The thing about this whole debate is that, logically, The Christian Institute, and later Peter Tatchell, adopting their arguments, are right about analogous situations (Muslim cameraman etc) but the Courts won’t see it that way because homosexuality is increasingly a protected characteristic in every way. And seriously, who’s going to take on Islam when we’ve seen what happens when you do? (Charlie Hebdo etc). Christians don’t fight back in those sorts of ways so they’re fair game for weak people.

      The gay rights agenda is a credal requirement for participation in society. The constant victim mentality and “hurt feelings” count for so much because we have for generations not been required to have any emotional maturity. So someone who hurts our feelings is a BAD PERSON….(!) Unfortunately the people in charge are now those with no emotional maturity. As seen by this judgment.

    • Leaving the EU doesn’t affect our relationship to the ECHR or the European Court of Human Rights. That’s because it is governed by a separate organisation, the Council of Europe, which predates the EU and its predecessors (EEC etc), and which we have no plans to leave. So Brexit has no impact on this matter (except that EU members must be Council of Europe members, so once we have left the EU we could in theory also leave the Council of Europe; however, at present we have no plans to).

      This is why the British Bill of Rights has quietly disappeared from the political agenda: unless we leave the Council of Europe it is pointless.

      • The United Nations Declaration of Human Rights predates ECHR and Britain is a FULL signatory of the UN Declaration of Human Rights so it remains disturbing when ECHR becomes a vehicle for deviating from the UN Declaration.

        In the UN Declaration of Human Rights religion is fully respected.

        The judiciary has introduced the concept of religious organizations when no such statement exists in the UN Declaration of Human Rights.

  3. I’m not sure Mr O’Dair’s reading of Bull v Hall is correct. The court did not base their reasoning on the argument that parliament was entitled to decide that the rights of gay people in these situations outweigh the rights of christians to manifest their religious beliefs, and so fail to go on to consider proportionality under the HRA. This is just wrong. The court actually undertook a detailed consideration of the proportionality of the limitation on the right to manifest religious belief which the equality regulations involved, and decided that the limitation was proportionate. The relevant paragraphs are below (from Lady Hale’s leading judgment). There is, of course, scope for disagreement.

    Heterosexuals have known this about themselves and been able to fulfil themselves in this way throughout history. Homosexuals have also known this about themselves but were long denied the possibility of fulfilling themselves through relationships with others. This was an affront to their dignity as human beings which our law has now (some would say belatedly) recognised. Homosexuals can enjoy the same freedom and the same relationships as any others. But we should not underestimate the continuing legacy of those centuries of discrimination, persecution even, which is still going on in many parts of the world. It is no doubt for that reason that Strasbourg requires “very weighty reasons” to justify discrimination on grounds of sexual orientation. It is for that reason that we should be slow to accept that prohibiting hotel keepers from discriminating against homosexuals is a disproportionate limitation on their right to manifest their religion.
    There is no question of (as Rafferty LJ put it) replacing “legal oppression of one community (homosexual couples) with legal oppression of another (those sharing the defendants’ beliefs)” (para 56). If Mr Preddy and Mr Hall ran a hotel which denied a double room to Mr and Mrs Bull, whether on the ground of their Christian beliefs or on the ground of their sexual orientation, they would find themselves in the same situation that Mr and Mrs Bull find themselves today.

  4. At the heart of this disgraceful judgement is the tyranny of controlling human freedom of thought and expression of thought. And this tyranny is borne of the urge for power over others (in this case, the freedom to say what you think and also the freedom not to say what you don’t think), and that is an outcome of the sin which is in all of us.

    We Christians (and a large majority of our society which has a residual instinct, gained in times past, for much of the good which stems from Christianity) also recognise that we all need to understand the need for and to develop our own personal inhibition in expressing the worst of our vicious and destructive utterances; but that has to be done by our upbringing and through learned social skills, not by the diktats of the state. Where the state may, and usually does, have a legitimate role is in prevention of freedom of verbal expression spilling over into violence; that is a compromise which most of us freely accept for the sake of protecting the innocent and maintaining a stable society.

    The Asher case exposes the foolishness and the plain injustice of legislating further and further down into the minutiae of human thought and interaction (not least when it’s done for socio-political reasons). ‘Hate crimes’, for example, are an absurd and fundamentally unjust concept which Christians should oppose because, as a secular attempt to restrict one area of the fruits of sin, it seizes for itself domination over an area which God gave to all human beings: freedom of thought and expression. Of course the reality of specific judgements and the knots in logic on which those judgements are based immediately shows that ill-conceived legislation merely sets one set of ‘rights’ against another – injustice is inevitable.

    As self-employed traders in a free market the Ashers should, in any case, have every right to choose exactly what service they provide and to whom they choose to provide it. If they choose to treat potential customers unfairly or dishonestly (which they didn’t) customers have every right to boycott them and go elsewhere – and their business will suffer and possibly fail as a result. Speaking as someone who has been self-employed for many years, I have never felt obliged to do any work for anyone which I didn’t want to do – and I’ve never met any self-employed person who would disagree with that. It seems our legislators and judiciary simply don’t understand the real world over this issue. The law at this point is clearly an ass.

    • Richard O’Dair responds

      James point does get support in the text of the judgment as cited though my point is supported by paragraph 38. It is fair to ask though how it can possibibley said that the SC seriously addressed the proportionality issue. The sorts of reading down of the Regulations which i propose in my article is and always has been an obvious solution to the balencing of the interests involved.

  5. One of the aspects of the case which I think the ruling mentioned was the fact that the Ashers baked cakes for Halloween. I think this does show an inconsistency in their approach but it seems irrelevant: why should a company be penalised for drawing a line here and not there? I think that seems a little harsh to bring in and ultimately inconsequential to the verdict.

    Anyway, thanks for your work on this Ian – I do find this deeply worrying for free speech, and I applaud the likes of Peter Tatchell for having the courage to defend the Ashers. It’s interesting that not many of the LGBT campaigners within the church have said much about it.

    • The fact that the court mentioned Halloween just goes to show how unwise it is for secular courts to make rulings that depend on their interpretation of the religious beliefs of others. Halloween was originally a Christian festival, and not all Christians oppose it; some (not especially liberal) churches even have Halloween parties – actual Halloween parties, not ‘alternatives’ – for the kids. Now of course some Christians would objet to this; but the point is that maybe the McArthurs didn’t, and they can’t be accused of hypocrisy as a consequence.

  6. Most here know where I stand on the issue of same-sex marriage.

    Nevetheless, two years ago, I wrote this alternative to Peter Ould’s view of the Asher’s case. The denial of their appeal has borne out my position:

    In the case of Hall vs Bulls, the Supreme Court judge stated: ‘I would therefore regard the criterion of marriage or civil partnership as indissociable from the sexual orientation of those who qualify to enter it. More importantly, there is an exact correspondence between the advantage conferred and the disadvantage imposed in allowing a double bed to the one and denying it to the other.

    For Asher bakery to have committed direct discrimination, the support for gay marriage would have to be indissociable from the sexual orientation of the customer.
    1. The parallel status of gay marriage would have to already exist, which it doesn’t.
    2. Support for gay marriage would have to be categorically associated with those of a homosexual orientation, like civil partnership. However, that isn’t the case either.

    Indirect discrimination: ‘(a) which he applies or would apply equally to persons not of B’s sexual orientation, (b) which puts persons of B’s sexual orientation at a disadvantage compared to some or all others (where there is no material difference in the relevant circumstances, (c) which puts B at a disadvantage compared to some or all persons who are not of his sexual orientation (where there is no material difference in the relevant circumstances), and (d) which A cannot reasonably justify by reference to matters other than B’s sexual orientation.

    The use of *AND* is important. So, the prospective plaintiff might claim that, although the criterion of religious belief might also prevent the bakery from providing a ‘Bring Back Slavery’ cake (to the detriment of right-wing extremists who aren’t necessarily homosexual), that criterion would still disadvantage himself *and* some or all homosexuals relative to heterosexuals. Peter Ould has quite understandably (but wrongly) treated the validity of the slogan as the basis upon which a court would adjudge Asher to have discriminated. In fact, it’s the admitted religious criterion by which the plaintiff was refused the cake.

    A finding of indirect discrimination doesn’t require evidence that a criterion indissociable from homosexual orientation was at stake.

    For the refusal to be adjudged indirect discrimination, the question isn’t whether some other group could also be disadvantaged by the religious criterion, but whether the *same* criterion could conceivably allow Asher bakery to provide straight people with a ‘Support Straight Marriage’ cake, thereby putting them at an advantage to those activist homosexuals, like the plaintiffs, who have a blanket refusal.

    The more extreme logical extrapolations (Nazi/Slavery/Infanticide cakes) are not a matter for the court to decide.

    For indirect discrimination to be proved, support for gay marriage doesn’t have to categorically follow a person’s orientation. In other words, would the bakery’s religious policy permit an order from straight people for a ‘Support Straight Marriage’ cake?

    If Asher had stated that their religious policy prevented them from participating in sloganeering of any kind, then that policy would be equally applicable to ‘Support [insert chosen variant here] Marriage’ cakes.

    However, if the religious policy is either not a consistent policy at all, or one that could inadvertently refuse this sloganeering cake to activists of homosexual orientation, but logically allow one for activists of a straight orientation, I can’t see why a judge shouldn’t rule that indirect discrimination, as defined in law, did occur.

    As a footnote, the judge in the Bulls case advocated the idea of reasonable accommodation. However, until that is ratified in law, the current regulations will leave supporters of traditional marriage open to litigation.

    What we can do is reiterated in the Supreme Court ruling: ‘Mr and Mrs Bull are, of course, free to manifest their religion in many other ways. They do this by the symbolism of their stationery and various decorative items in the hotel, by the provision of bibles and gospel tracts, and by the use of their premises by local churches.’

    At what point do we follow Christ, who in the provision of services, said: ‘And if anyone presses you into service for one mile, go with him two miles.’?

    So, perhaps, a prominent sign: ‘We are committed to providing service to all. We also maintain our lawful right to express and discuss our Christian beliefs by which our lives are fashioned.’

    It would go a long way towards ending the belief among LGBT people that these policies are really a smokescreen for ensuring that Christians will never have to do anything for LGBT people, but are happier to court other groups that aren’t aligned with the gospel.

    We get away with it by living in parallel worlds that don’t cross each other. a Muslim probably won’t ask a Christian baker to provide pastries for Eid…but…What would Jesus Do?

  7. The starting point for me is the fact that Northern Ireland does not recognise same sex marriage as yet ( or I stand to be corrected) yet it legislates that other people have to? Something does not seem right here and can you guess what it is?. Northern Ireland has by definition of it’s law discriminated against all those people who want other relationships acknowledged yet has set up a discrimination law that undermines its own law? I am confused……:)

    • Not really. The law in NI allows lawful campaigning to change laws, otherwise it would be a dictatorship. The background to this law is the cultural and religious background of ‘the troubles’ – hence forbiding ‘discrimination’ in the provision of services on religious or political grounds.

      A business is not allowed any discretion on these grounds and must offer a neutral and equitable stance to religious and political views. Ashers could have decided not to bake any cakes at all with ‘bespoke’ slogans on them and kept control over what they allowed (as basic ‘words’, such as “Happy Birthday ‘N’ ” or “Congratulations ‘N’ and ‘N’ on your Xxth Wedding anniversary” could be offered to anyone irrespective of religious or political motive). As the law is interpreted if they do allow bespoke slogans they are not permitted to pick and choose which political or religious slogans they do allow on the basis of their own religious or political conscience.

      Going forward it does seem that getting the right balances between ‘freedom of conscience’, lequitable access to services and ‘free speech’ needs to be determined carefully and this emotive, even unseemly courtroom battle isn’t helping.

      • So who does the law serve? Those who believe in the law or those who do not? Ashers agree with the law of the land which says marriage is between a man and women and will not promote same sex marriage! yet have been taken to court and lost! Yet those who do not agree with that and are campaigning against that law are held up as victorious, allowed to take a couple to court over several months with the risk of losing their livelihoods and it is not the law of the land? heaven help us…..!

        • They were taken to court for not thinking their policy through. If they had, as they now do, a sign saying they will not ice cakes with ANY political slogan, then they could quite legitimately, turn down the business with no repercussions.

        • The law serves the people of the land – which is why it may be challenged and we can campaign for laws to be changed. You may not agree that allowiing equal marriage would be a better law than the present one but you can’t really believe that the democratic right to campaign for change should be suspended. Ashers made the mistake of offering a service that was not neutral and equitable – ie available to everyone within the law.

          Have a look at Sally Hitchener’s excellent article on this in Christian Today:


          • Really, so, let’s say you’re a publisher and an animal rights campaigner.

            A couple of customers accept your quick on-line quotes based on intended output format and quantity, but when the artwork arrives, it is entitled ‘International Fox Hunting Quarterly – Fight for Repeal’.

            I can see how the refusal to publish it would make ‘the mistake of offering a service that was not neutral and equitable – i.e. available to everyone within the law’…

      • Drew_mac,

        Your example would explain the finding of indirect discrimination.

        However, the judge in the original case stated:
        ‘Same sex marriage is inextricably linked to sexual relations between same sex couples which is a union of persons having a particular sexual orientation.’
        This was upheld on appeal as the basis for the finding of direct discrimination.

        The appeal judge declared in upholding this finding:
        ‘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. Accordingly this was direct discrimination.

        This might have been true if non-consummation, as grounds for annulment, applied equally to same-sex marriage. However, under British law, consummation doesn’t apply to same-sex couples. The Marriage (Same Sex Couples) Act 2013 amends Schedule 4: Section 12 of the Matrimonial Causes Act 1973 (grounds on which a marriage is voidable) as follows:
        ‘(2) Paragraphs (a) and (b) of subsection (1) do not apply to the marriage of a same sex couple.
        The Same Sex Marriage Act does not allow non-consummation to be a ground for annulment.

        Therefore, contrary to the judge’s assertion, same sex marriage is NOT ‘*inextricably* linked to sexual relations between same sex couples which is a union of persons having a particular sexual orientation.’

        As we are so often told by revisionists, consummation is not a requirement of marriage and the above regulation clearly shows that there is no inextricable link between same-sex marriage and the sexual relations of the couple. The absence of the latter doesn’t even render the marriage voidable.

        Ergo, if a person is treated differently on account of their support for same-sex marriage, one can do so without directly discriminating against their sexual orientation.

        • As a footnote, I’d challenge any commenter here to find any clause in the Same-Sex Marriage Act 2013 in which the right of two persons of the same-sex to marry is inextricably linked to sexual relations between them.

      • drew_mac …. but we are in the bizarre situation where those who support the law are fully penalised (including being put out of business if necessary) and those who are against the law are fully and financially rewarded.

  8. I have no idea why people appeal to their ‘religious’ beliefs in such cases. There are 4 problems with that:
    (a) it is wishy-washy – what does it mean? ‘Religion’ is an especially vague word.
    (b) what is its status as a point? – i.e. why should anyone accept the importance or value of a ‘religious belief’
    (c) the so-called belief could be nothing but an ideology or preference – i.e. not a belief (something to which the balance of evidence appears to point) at all,
    (d) appeal could be made to both science and statistics, yet appeal is being made to neither of the two.

    Even worse is the phrase ‘deeply-held religious beliefs’ as though it were all an emotional matter.

    The ruling is nonsense, and the possible extent of unedifying ramifications unending. The fact that gay marriage is not even legal in NIre just compounds the nonsense – had the cake slogan upheld the law, would self-styled gay bakers who refused it have been prosecuted? Probably – that’s what we had in England where Christian Concern were refused a platform when upholding the law but those who planned to change it were granted one by the same QEII Centre. And organisations were given licences even before the 2008 embryology bill passed. Laws are often wrong and contradictory – but such cases prove that law does not rule: ideology is a stronger power in the land. Where rulings are felt to be of the ‘could go either way’ variety, it is the ruling ideology (the currently fashionable perspective) that prevails.

  9. And of course the worst thing is that people of conscience are the new so-called criminals. People of conscience are only the best people that there are. The difference between the new type of criminal and the traditional type is like chalk and cheese.

  10. Two comments back, I should have written: ‘Would self-styled gay bakers who refused it have been prosecuted? Probably NOT…’

    • Chris,

      Martin Reynolds really doesn’t know what he’s talking about here.

      The judgement may well have upheld the lower court, but deftly sidestepped any declaration of its own in support for same-sex marriage being indissociable from same-sex sexual orientation.

      Revisionists can toast this unvarnished judicial activism. It reminds me of what Christ said in the Parable of the Unjust Steward: ‘the sons of darkness are more astute in this world than the sons of light’.

      I would also paraphrase His sarcasm: ‘Go on and build alliances through dishonest worldly opportunism that eventually those allies will welcome you into their eternal (or should we say, infernal) abode.’

  11. This law is in development and there must and will be tweaks to avoid cases like this, the firm corrective from James Harper above in part shows how the courts are looking for and expecting this.

    Many gay Christians will feel doubly trivialised by this case.

    Peter Tatchell has allied himself with Christian Institute cases several times before, right back to Lilian Ladele. So contrary to the introduction above, no surprise here.

    • One of the aspects of that development is how the case law is establishing clarity on the matter of sex and marriage, though for most there never was doubt.
      That sex and marriage were inextricably linked was obvious to the CofE who immediately forbad it to their clerics, whereas the new institution of Civil Partnership escaped that judgment despite the Church clearly being deeply disturbed by the marriagelike raft of subsidiary legislation that subsequently emerged under the perogative.
      The fact that many jurisdictions where Englush Common Law was adopted, have abandoned non consummation has not broken the link between sex and marriage there …….

      • ‘The fact that many jurisdictions where English Common Law was adopted, have abandoned non consummation has not broken the link between sex and marriage there …….’

        So, absent consummation, there may well be a common law link between sex and marriage, but that doesn’t prove that they are inextricably linked in the case of same-sex marriage.

        Whatever the Church might have feared regarding CPs or SSM, it doesn’t prove the inextricability of same-sex marriage and sexual relations from a legal standpoint. If you can find any clause in the Same-Sex Marriage Act 2013 (or secondary legislation) in which the right of two persons of the same-sex to marry is inextricably linked to sexual relations between them, then present it here.

        In fact, back in 2012, I remember SSM advocates arguing that celibate marriages were still perfectly licit.

        • Hi David,

          briefly and in a little haste… I’m sure it’s still possible to argue that celibate same- or other-sex marriages are licit, but surely the link of CP and SS marriage to sex from a legal standpoint, is shown in the fact that the prohibited degrees of relationship are the same as for (male-female) marriage…?

          in friendship, Blair

          • Hi Blair,

            Thanks for replying. The central issue is the judge’s use of inextricable: ‘Same sex marriage is inextricably linked to sexual relations between same sex couples’.

            A blanket prohibition of close-family marriage doesn’t establish an inextricable link od same-sex marriage to sexual relations. For instance, even celibate close-family marriages are also prohibited.

            As a parallel example, a blanket prohibition preventing restaurant patrons from smoking doesn’t establish an inextricable link between the patronage of restaurants and smoking.

            Inextricability is important because the original finding of direct discrimination was that support for same-sex marriage is indissociable from sexual orientation.

            To quote from the case law that the judge cited in support:
            ‘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”.</i?

            The upheld judgement claims that the those receiving an advantage of the Ashers baking a cake with a slogan and those being denied a 'support gay marriage' cake COINCIDE EXACTLY with categorising them all by sexual orientation.

            So, please explain how such a claim might stand to reason.

            Instead, to relax this requirement, the appeal judgement declares: This was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community.

            Well, guess what? Mere association of support for gay marriage with those of a particular orientation is not the same as an inextricable link.

            You know that and I know that, but, to some, sacrificing the Ashers for a symbolic, legal victory is far easier than quibbling over the detriment caused by overzealous judicial activism, eh?

      • As I understand the way the law develops from statute is that judgments like this in the higher court become a part of the law as the courts examine cases in the future.
        I am not sure if the lower tribunal’s judgment has such force, but I am suggesting that any supposed lack of clarity in this matter has now been resolved and that the inextricable link now exists in law.
        Chris ….. this is a civil case …. we have no criminals here!

        • Martin, I don’t understand what you mean by ‘no criminals’. By the strict legal definition of ‘criminal’, maybe – but what is the difference? People still are judged to have done wrong and to have to compensate.

          Your (surely hair-splitting) distinction reminds me of the idea that killing an unborn baby is not murder. The layman rightly understands it to be so because there is killing and that killing is deliberate / premeditated. The fact that by the strict legal definition ‘murder’ is not the mot juste is irrelevant, since the baby ends up just as dead and the killing was just as intentional either way. Likewise here the penalty is just as much as penalty and the judgment that something is wrong is just as much a judgment that something is wrong.

          • Christopher, there is a huge difference between civil law and criminal law.
            I sense unbridled passion here and this gives no account for truth and truth is important and not to be swept away by gossip or foolishness.
            My experience of many of these cases (and I have talked to some of those corralled by the Christian Institute, Mr Diamond etc) is that the feelings and sensitivities of those wanting to continue to discriminate are often abused for “political” purpose. While others have used their standing in these cases to earn substantial sums on the lecture circuit.

            My amazement, considering the cultural volte face we have experienced in the last 10 years, is how few cases are brought and how silly they often are ….

          • Martin, the errors in your reply are several. I will list some. If any commenters consider these not to be errors do come back to me.

            (1) The cases are not silly. They could scarcely be more important.
            -They seek to preserve something that should never have been denied: the option of acting according to one’s conscience (and often also in line with the bulk of the research). How do you personally estimate the importance of that?
            -They often highlight illogicality. Prioritising lawbreaking options over lawkeeping options, for example (as in the Ashers case)
            -They bankrupt people and upturn people’s family life.

            (2) The CI and CC do not corral people. People appeal to them. CC must have had 100 cases by now. Name one person who was corralled rather than going to court willingly. I will be interested in your answer. The extent of your inaccuracy can be seen in that your wording implies that ALL of them were corralled. That is not just inaccuracy – it is anything up to 100% inaccuracy.

            (3) What – you mean they earn substantial sums from one off lectures after they have been fired from their permanent work? Name one person who is richer after being sacked than they were before. There may be one or two, and again I will be interested in your answer. How about naming the percentage of those who had to go to court who now do well out of lecturing?

            (4) ‘Wanting to continue to discriminate’ – come off it, you know as well as I do that the whole concept of discrimination is far from clear-cut. Since people are by and large not born gay, that means that there is no category of gay people any more than of smokers. All there is is a category of people who are gay/smoker at time-period X. When we say that 2 things are different from each other, we discriminate. And the vast majority of pairs of things taken at random ARE different from each other! Obviously.

            (5) I don’t understand what your second para is referring to. Also ‘this gives no account for truth’ is not English.

            (6) The whole point of my previous comment was: how much difference is there really between ‘civil’ and ‘criminal’ matters? You did not address my similarity points.

        • Let me emphasise this Chris.
          Some very genuine people have been cruelly and thoughtlessly manipulated by a small group of lobbyists and while some have been abandoned having been promised success for their case, others have become rather bizarre heroes in an increasingly twisted type of Christianity, some of those have done well financially out of that status.
          The cases are often trivial and silly and bring shame on both Christian and gay communities and give fodder for people to make even sillier remarks that, once again do us as Christians no favours.
          Many of us are hoping for the law to be improved.

          • Martin, it would be good to have a reply to my Oct 29 comment. You made various allegations and I am not the only person who wants to know whether these allegations are true or not. I said they were not because they were so sweeping and generalising failed to provide chapter and verse, failed to substantiate hints, and failed to show that anecdotal evidence (if evidence it were) was typical rather than exceptional. Over to you.

          • Sorry, I am poorly and have not seen this. ….

            Sorry you do not agree that this is trivial from both a Christian and gay point of view…
            The differences between civil and criminal law are legion. Look it up.
            While I have been told by two myself the only evidence I know is publicly available of a benefit from these machinations is that of Mrs Eweida who was refused compensation by the court on the grounds that she had earned far more from her supporters and activities than had she be paid by British Airways.
            Is one enough?
            Though I realise that you may not see this post and I may be delayed by ill health from seeing your reply.
            I am sorry for the delay ….

          • That is very helpful, thanks.

            It is also true that:

            (1) Christian Concern has had over 100 such clients. Nadia Eweida is only one, and different cases will follow different patterns. There have been those, e.g. Jonathan Bartley, who have felt duty bound to maintain that there has been something that does not add up in every single one of those cases. Good luck to them in demonstrating that, because each case is different. Their stance sounds a lot more like a pre-formed dogmatic ideology rather than being evidence-driven; it’s something that they think ‘must’ be true. But why must it?

            (2) Nadia Eweida did not know from one day to the next whether she would have a job to go to. Sensible therefore to get some money in the kitty. One might need it badly.

            (3) Speaking engagements about a particular case are neither (I) a steady income, nor (ii) a long-term income.

            (4) Nadia Eweida would have been right to believe that her story needed to be widely spread, to show people what sort of thing is going on. The speaking engagements would have been a means to that very positive end.

  12. All,

    Christopher Shell makes a valid point about hair-splitting over the difference in outcomes between civil and criminal cases. Of course, the Ashers weren’t convicted for homophobic actions (which would have been a hate crime). Nevertheless, simply by refusing an order for a ‘Support Gay Marriage’ cake, they are now branded as homophobes. No doubt, some will say ‘That’ll teach ’em!’

    Given that religion is also a protected characteristic, by the same standards, a Muslim printer, who refuses to print Christian evangelistic tracts, might have been branded a religious bigot.

    Of course, that will never probably happen because Muslim and Christians aren’t opportunistically ‘playing the [protected characteristic] card’: treating businesses, like the Ashers as expendable, in the bid to reverse their sense of rejection by society.

    I pity those, like Gareth Lee, who feel compelled to resort to such tactics, but there’s little public sympathy for him getting his ‘pound of flesh’.

  13. Personally i think for making your own cake the way you want it, Lakeland plastic do a fabulous Mary Berry set of cake tins and icing. Ready to roll, fondant and you can even get lots of food colouring, cutters,sponge mixes, and even gold leaves etc. All you need thanks to bake off and Lakeland plastics. As for political campaigns posters you could use glue, colouring ( de stress at the same time) pipe cleaners and get lots of friends to help and put glitter on as a finishing touch. Ta Da 🙂

  14. Ian, no-one has commented on this so I’m probably mistaken. But is your legal friend really stating that if I went into a bank to open an account (in the UK) and was told politely that I couldn’t because it was against their religious beliefs for women to control money, but that there was a bank two doors down which would allow me to open an account, this would be OK?

    • Gosh, I don;t know how to respond to this. Again and again it has been pointed out that you cannot discriminate against a person with a protected characteristic, which includes sex identity (you are a woman) so the example you give would be illegal.

      But (again and again) it has been pointed out that Lee was a regular customer and it was not his identity that was the problem, but the political ideology of the slogan.

      So if you wanted to open a bank account for an organisation called Death to All Men Because Women are Perfect then the bank might be able to refuse. But the fact that you are a women asking this has no bearing.

      I don;t want to be rude—but I am a bit baffled that this aspect of the case it hard to grasp….! 😀

      • Ian, the judgement ruled that Gareth Lee was discriminated against by association with a particular protected characteristic – namely the Gay and big community. Discrimination by association is already a principle established in case law. As it happens, I find the ruling that there was such discrimination in this case bizarre, but if you read the summary of the judgement you will see that it was actually ruled that there was discrimination against the protected characteristic of sexual orientation.

        • David,

          ‘Discrimination by association is already a principle established by case law’

          Can you provide some case law examples?

          I took issue with the appeal upholding direct discrimination because it requires the criterion (support for gay marriage) to be indissociable from the protected characteristic. The inextricable link must be established between them.

          So, are you claiming that there is an inextricable link between support for same-sex marriage and same-sex sexual attraction, since that’s the basis for finding of direct discrimination?

          • I’m not claiming anything, David, if you re-read what I wrote you might notice that I don’t believe there was any discrimination on the grounds of sexuality in the Asher’s Bakery case. However, the judge found that there was direct discrimination on the grounds of sexuality (by association).

          • David B,

            Thanks for the links, which clarify what’s meant by discrimination by association.

            It’s clear that what is meant by association is not the exact coincidence of those categorised as experiencing disadvantage with those categorised as sharing the protected characteristic.

            Instead, associative discrimination is where the disadvantage is experienced by a person who does not share the protected characteristic, but it can be demonstrated that the disadvantage was a consequence of that protected characteristic.

            So, Mr. Truman wasn’t disabled, but his dismissal was timed to prevent him from taking any family leave entitlement to be with his disabled daughter.

            In the second case, although the plaintiff didn’t share the protected characteristic of Roma people, she was nonetheless affected by the utility company’s discriminatory positioning of meters in that region.

            The association is that discrimination against the protected characteristic is proven to be the basis for the disadvantage experienced by someone without the protected characteristic.

          • Yes, except that it doesn’t matter whether or not the person discriminated against by association shares that protected characteristic. As the summary of the judgement says, whether or not the bakery assumed Mr Lee was gay was immaterial to the case. She ruled, however, that he was discriminated against by association on the grounds of a protected characteristic in being denied the baker’s goods/ services, because the slogan turned down could only have been of benefit to people of the protected characteristic. To be clear, I don’t write this in support of the judgement.

          • David B,

            Okay, I’ve read the full judgement here: http://www.equalityni.org/ECNI/media/ECNI/Cases%20and%20Settlements/2016/AshersFullJudgement-Appeal.pdf.

            You’re correct in clarifying that associative discrimination, as cited by the judge, identifies a correspondence between the benefit supported by the slogan and those with the protected characteristic. I also understand that you aren’t writing in support of the judgement.

            Nevertheless, while the benefit of gay marriage per se might be considered to correspond exactly to those with homosexual orientation, I’ve always heard gay activists suggesting that the benefit of supporting gay marriage accrued to the entire society. In which case, the appeal was upheld through sheer sophistry.

            Yet, the whole thing has given me an idea for a ‘Recognise Christianity now!’ Christmas cake. As you know, the recognition of Christianity is a right of all people who share my protected religious characteristic.

            There’s a Jewish bakery just down the road from where I live…

      • Sorry Ian, only just seen this. Your notify me by email thing doesn’t seem to be working for me. No, I do understand protected characteristics. I was just a little puzzled by what I took to be your learned friend’s opinion that it woul be OK to decline service if you were polite and there was a convenient alternative. Isn’t that the situation which protecting characteristics is there to avoid?

    • Penelope, Islamic banks do NOT charge interest and so the case you are postulating actually exists and at the moment nobody has brought charges against an Islamic bank for pointing out that they do not charge interest precisely because it is against their religion whilst they do,however, charge an “administration” fee (or any other appropriate name for the fee).

      So I look forward to you being the first person to bring charges against islamic banks in London because of their religious discrimination (in your opinion). I, for one, do not such actions as discrimination.

      • That has nothing to do with protected characteristics, Clive. In the example you cite no one is permitted an account which can accrue interest, regardless of their characteristics.

        • Dear David,

          Penelope Cowell Doe wrote:
          “…But is your legal friend really stating that if I went into a bank to open an account (in the UK) and was told politely that I couldn’t because it was against their religious beliefs for women to control money…”

          So here statement depends on “religious beliefs” that are particular to “women” … and this is precisely and exactly where Islamic banks are right now.

          Therefore, in the context of women, this has everything to do with protected characteristics.

          • No Clive. My example was about gender – which is protected – not about usury which isn’t. Your example is like me going to a halal butcher. I cannot demand that they sell me a pork chop, but neither can they refused serve me because I am a woman and/or a Christian.

  15. Also your legal friend does actually seem to be arguing, unless I’m imagining things, that the hoteliers in Ball vs Hall (2013) should have been allowed to discriminate against civil partners because of their religious beliefs.

  16. There are a number of things that puzzle me in cases like this where gay activists try to force others to do things against their will.

    Firstly, how do we know that somebody is really gay? We now know that there is no gay gene, there is no medical test which could identify somebody as gay such as DNA; it is not an immutable characteristic such as race or sex. Most would agree that it is fluid and changeable – many people who have identified as gay have gone on to form stable heterosexual relationships. So surely anybody with a grudge against, say, a ‘homophobic’ baker, could pretend to be gay knowing he/she would stand a pretty good chance of winning a lawsuit, and the unfortunate baker would then be put in the position of having to prove that the litigant was not in fact gay – if such a thing were possible.

    Then, if said litigant, having made a pile through the lawsuit, went on to marry or otherwise pair up with someone of the opposite sex, could he/she be made to pay this back? And be punished for deception? They may even have felt gay at the time of the lawsuit but sometimes these feelings do diminish, as many will testify.

    It seems to me that the whole of this gay equality stuff is built on sand.

    Next we have transgender activists lining up to punish people who won’t use their preferred pronouns. Another ‘orientation’ which is unprovable. Who will be the next? As usual, the lawyers will be the ones who benefit most from all this.

    • How do we know that somebody is really gay? There is no means of proving it, just as there is no means of proving that somebody is really straight. Certainly no gay gene has been found, and no straight gene has been found either. It is generally agreed by biologists that if there are genetic factors in the causation of sexual orientation, they almost certainly won’t be traceable to single genes. There is no medical test that will identify somebody as either gay or straight. Some people’s sexuality may be fluid and changeable, but it is clear that most people’s is not. No doubt some people who have identified as gay have gone on to form stable heterosexual relationships, but most don’t. Some people who have identified as straight have gone on to form stable homosexual relationships, but again most don’t.

      If it’s illegal to discriminate against a person because of their sexual orientation, then it’s illegal, and that’s that. Whether or not the belief of the discriminator concerning the person’s sexual orientation happens to be correct does not affect that. If I were refused goods or services on the ground that I am heterosexual, that would be very decidedly not on. That I’m not in fact heterosexual would be neither here nor there.

      None of the above applies to this case, since the bakery did not refuse to serve the complainant on the ground that he was gay. Personally, I disagree with the ruling. While it certainly should not be permissible to refuse to provide him with a cake, I think that any bakery should be as free to decline to decorate a cake with that particular slogan as to decline to decorate it with an anti-gay slogan.

  17. Richard – I’m hoping you can explain something to me. I can’t see where non-discrimination in the provision of goods and services is covered by the ECHR. Goods and services don’t seem to be mentioned in it, and the non-discrimination provisions of article 14 only apply to rights under the convention. However, freedom of religion is covered by article 9. So why in the case of gay rights do the courts keep disregarding article 9 in favour of legal provisions not protected by the convention? Surely they should be striking down equality legislation that is insufficiently protective of freedom of religion, association, speech etc? Their jurisprudence seems to be more about protecting the perceived interests of the gay community (to rectify historic injustices, perhaps) than upholding the actual terms of the convention. Or am I missing something?

    • Hi Wll,

      Just an interjection, but the ECHR will also consider the broader perspective of Article 21 of the Charter of Fundamental Rights of the European Union:

      Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.

      While member states enjoy a ‘range of discretion’ (margin of appreciation), the ECHR requires ‘particularly weighty reasons’ to justify a difference in treatment on the above grounds. In many cases, a religiously motivated action might even not be legally recognised as a manifestation of religion or belief.

      • Thanks David that’s helpful. So it’s the EU charter (and ECJ) rather than the ECHR that’s behind it. Makes more sense. Maybe leaving the EU will help after all then.

        • Hi Will,

          The following article does clarify the role of the Charter: http://rightsinfo.org/eu-charter-got-bill-rights/.

          It’s a moot point whether this will help. We do know that the contribution of the CofE’s Mission and Public Affairs Division primarily focused on protecting the freedom of the Church in relation to clergy being compelled by the State to officiate at same-sex weddings. There was some analysis on the implications for public servants, such as teachers and registrars.

          In contrast, there was comparatively little analysis of the impact of Equalities legislation on those laity, like the Asher bakery, or the Bulls B&B, who seek to follow their consciences in running their family businesses.

          I was tempted a bit earlier today to order a bespoke ‘Recognise Christianity’ cake from the Carmelli Jewish bakery in Golder’s Green. If they declined, I doubt that the EHRC would have any choice, but to support my claim of discrimination.

          Nevertheless, that’s just victimising another faith to score a retaliatory legal victory and a political point: it’s evil for evil.

          Jesus was fairly clear-cut about both desisting from personal retaliation and about the just desserts of the wicked (no pun intended!)


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