Updated Sunday evening
When we reported on this case in 2015 we used the headline: Ashers Bakery judgement generates controversy.
This week the UK Supreme Court issued its judgment. The full text is available here.
The Church of Ireland has published: Statement on Ashers bakery case judgment.
The Rt Revd Dr Kenneth Kearon, Chair of the Church of Ireland’s Church and Society Commission, made the following statement regarding the UK Supreme Court’s judgment in the case involving Ashers bakery on Wednesday, 10th October.
‘We welcome the affirmation of religious freedom and expression in this particular case. This is a complex issue which does involve the balancing of rights. The decision by the Supreme Court in this case affirms the rights of the business and does not significantly impact on the freedom of choice for the customer.’
The case is analysed in various places, including:
Disagreement with the decision has been expressed here:
Agreement with it came from:
Update
Many more links here.
Stonewall are barking up the wrong tree. Ashers had previously served the customer. They were happy to sell cakes to people of any orientation. Ashers made it quite clear, and no one disputed, that they would have refused to produce the same cake whatever the orientation of the person ordering it. There is no direct link between “ordering a cake supporting same-sex marriage” and “being gay”. I am a firm supporter of same-sex marriage, both in and not in churches, and I am virulently opposed to discrimination on the basis of orientation. I still think this judgement was correct. This… Read more »
Well, this gay man thanks you for your support and wholeheartedly agrees. I’d hate to be made to print things I loathe.
I do think this is the wrong call legally and if it is legally arguable it’s still a somewhat clumsy understanding of what is and isn’t discriminatory behaviour. I certainly don’t think that there is any victory for ‘free speech’ here, because it involves someone being denied the opportunity to say what they want to say on a cake. It’s not really about making Ashers bakery say something they don’t agree with: it’s about the bakers being unwilling to facilitate *someone else* saying something they disagree with. However, I admit I’m not a legal expert. What I really, really, really… Read more »
“I certainly don’t think that there is any victory for ‘free speech’ here, because it involves someone being denied the opportunity to say what they want to say on a cake.” No they aren’t. They are perfectly at liberty to write whatever they want on any cake they choose. Freedom of speech does not include the freedom to use other people’s platforms, and even if there is an arguable point when there are monopoly owners of channels, there is no rational argument that says Ashers are the only bakers in town. Perhaps the complainant could even learn to bake himself.… Read more »
When I was a student I once had to spend a couple of nights in the university medical centre. The nurse there was dutiful and attentive in her medical care as you would expect. After my then boyfriend had come to visit me, she let me know in no uncertain terms that, as a Christian, she disapproved of my ‘lifestyle’ (=my being gay) and how wrong it was. She didn’t discriminate against me by refusing to give me the service she gave to everyone in the medical centre, but by sharing the benefit of her religious beliefs with me she… Read more »
I wonder what the judgement would have been had Ashers refused to produce a cake bearing the message, “Support interracial marriage”?
Yes, I balk at the proclamation that this is a victory for Christianity, when it’s probably nothing of the sort (see, I’m trying to be culturally inclusive). Nevertheless, it’s the good ol’ liberal bind at work here (as in the Salman Rushdie case all those years ago, does freedom of speech trump minority opinion?), and this was never going to be a happy ending. I realise that the Church wears the Black Hat and therefore deserves a kicking, but how does a civilised society work out whose conscience trumps whose? Could an individual who had been on the receiving end… Read more »
It would have been the same.
Bakers are not public utilities.
It’s about law, not faith. The refusal was wrong, from the Christian standpoint, but allowable from the legal standpoint.
As so often, Peter Tatchell is spot on.
In reading the judgement, it is pretty clear that the Supreme Court found the original court not just wrong but obviously wrong (it would be rude to say so in as many words, but see key phrases like “not surprisingly”). Both Stonewall and Paul Johnson misunderstand the way Equality Law works – that people are protected but ideas are not. This is precisely the point of the Supreme Court’s ruling – it is not lawful to discriminate against the person (on grounds of sexual orientation), but that did not happen here; it is lawful to discriminate against ideas, which did… Read more »
“it is lawful to discriminate against ideas”
I’m not a lawyer so please forgive me if I’ve been labouring under a delusion recently. Are there no laws in this country agains the publishing of racist material?
Fr Andrew,
I don’t think publishing racist material is ipso facto illegal – for after all, who is to decide what is racist?
What does attract the Law’s attention is hate speech, presumably because it takes the further step of inviting violence against persons, who of course are protected. But merely expressing an idea is not illegal – it is suggesting/advocating/encouraging an illegal action which is.
I think the way I would put this point is that in this case there was no discrimination against the purchaser himself but only against his idea. So essentially it was a clash of ideas – the religious belief of the baker against the pro same sex marriage belief of the purchaser. I suppose a case could be made that the belief of the purchaser ought to have prevailed but for me there are two good reasons why the baker’s belief should be favoured: 1.The purchaser is admittedly left feeling disappointed, even somewhat rejected, because his belief didn’t win but… Read more »
Kate,
the judgement did in fact cover your last point. It decided that, in the case of a small family run company like this, to make the company fulfil the order would be identical to making the individuals who have protected rights do so, and that that couldn’t be justified. Because the reasoning was not fully worked out, it is perhaps the one point where an appeal to Europe might succeed, though as the Justices were unanimous I doubt it would.
I well remember the passage of the original protections on the grounds of sexual orientation. There were a lot of scare stories about what about Christian printers and photographers. The law didn’t entirely clarify this (hence the case) but my view at the time was that the issue didn’t arise because of the Human Rights Act. So there have been a few cases through the court now and in the main the rulings have been robust and helpful. In this one the law is pushed to its absolute limits and one doubts the wisdom of pushing it that far. The… Read more »
Some questions for those who see this as an important victory for freedom of speech. Does ‘freedom of speech’ extend to speech which is intended to demean or belittle people or incite hatred against them? If so, I can admire your single-mindedness to a principle but have no wish to live a world where you make the laws. If ‘freedom of speech’ comes with the responsibilities I believe it does in the UK in many circumstances to not speak to demean or belittle people and incite hatred against them, do we set aside those responsibilities if you believe that you… Read more »
It is perhaps significant that it is in Northern Ireland where holding homophobic views is socially acceptable. Thankfully our brethren in the Republic have been sufficiently intelligent to throw off the shackles of the Church and breathe the fresh air of a secular democracy. The so-called Christian Institute – who backed the Ashers – are hardly renowned for their Christian reasonableness. They may have won a small victory. But they still promote hatred and bigotry.
“Does ‘freedom of speech’ extend to speech which is intended to demean or belittle people or incite hatred against them?” Yes. But this is not an example of this. They were asking for the right to remain silent. The court says they can remain silent: they are not compelling to say things they do not wish to say. “I assert absolutely that opposition to equal marriage is inciting hatred against LGBT people” That may or may not be true, but is not the point of this judgement. Ashers were not demanding the right to oppose equal marriage, although that would… Read more »
Yes, the ruling was legally correct for the reasons IO describes. The CoI, on the other hand, has duties beyond its legal ones, and in when it comes to this particular statement they’d have been better advised by their press officers to avail themselves of the same right to silence.
Fr Andrew, I do think we have moral responsibility not to demean or belittle others, but I can’t see how the Law could work here, as it would be impossible to define in a satisfactory way. If I call the person with whom I disagree stupid, that is certainly belittling, but should it be illegal? What about foolish? Numpty? Wrong? Where do we draw the line? How much would my tone of voice be taken into account? There are some who would say their faith and therefore they themselves are belittled by others supporting equal marriage. How is the Law… Read more »
‘There are some who would say their faith and therefore they themselves are belittled by others supporting equal marriage’
Sheer false equivalence. LGBT people are demeaned and persecuted for who they are. It’s not about two differing opinions.
Saying it is “false equivalence” doesn’t address the question of whether demeaning speech ought to be illegal, and how that would be tested.
And whilst you might reasonably say that it is a false equivalence, this is not what the Law thinks – both sexual orientation and religion are protected characteristics, and equally so. There could be all sorts of arguments about whether that is correct, but unless Parliament gives a new law, no judge would or should ever try to rank one above the other.
There is no equivalence between an opinion, a belief and a sexual orientation.
But the Law does equate religion and sexual orientation. That’s just a fact.
Nor, as it happens, do I think it is wrong do so. Christian is something I am; it affects every aspect of my life and how I think of myself; I am no more able choose to believe Jesus is not lord than to choose to believe the world is flat. No one, I suggest, can choose to believe something he or she knows to be false. I know I can’t.
And which judge is going to rule that I am wrong?
Again, I can only assert false equivalence here, and quite an offensive one at that You were not born with those beliefs; that you would grow to hold those beliefs was not inevitable, you are unlikely in the uk ever to have been beaten for those beliefs, refused a job or sacked for those beliefs, been forced into celibacy for those beliefs, suffered a life of fear because of those beliefs, thought of taking your own life because of those beliefs, been much more likely to suffer mental illness for those beliefs, been daily reviled and shamed for those beliefs… Read more »
Fr Andrew, I absolutely accept that what you and other LGBT people have experienced has no place in a civilized society, and there is a proper sense of shame for the Church’s contribution to that. That sexual orientation is a protected characteristic is undoubtedly right and necessary. And it is obviously true that in modern Britain Christians do not experience any of the mistreatment you describe because of their religion. That said, there have been times in history and places in the world where people do experience just these kinds of treatment for their religion. It remains true in some… Read more »
Bernard, thank you for taking the time to engage in a thoughtful way. Much of what you say I wouldn’t disagree with. A couple of answers to specific points in your post. 1. It’s true that for LGBT people the situation in the UK now is better than it has ever been, but it’s pushing it way beyond reality to describe our experience today as a ‘pro-LGBT’ climate. A better description would be ‘less anti-gay’. I’m sure I don’t need to go into all the ways our life is not lived in a pro-gay climate. 2. Yes, I realised before… Read more »
Dear Fr Andrew, I’ve taken a while to get back to this, so hoping you see it … 1) is a matter of perspective, and of course your experience will feel very different than mine, but given that calling someone out as “homophobic” can cause serious reputational damage to that person (I’m thinking of celebrities and politicians here), and given the vehemence with which most young people will oppose homophobia, I feel you should be more optimistic than you are. I’m not for a second saying homophobia doesn’t still exist, though. 2) exploring this as regards what can be said… Read more »
This entire exchange shows the problem: heterosexuals simply *cannot* get it. They live in a bubble of privilege, from which they condescend to explain to us everything about ourselves, while simply dismissing it as “anecdotal,” or “subjective” when we disagree. They outnumber us, so they will always throw us right back, if we insist on these institutions, in which we must constantly defend our existence against their blind comfort.
Thank you for saying this so succinctly Mark.
It is an extraordinarily wearying process the constant engagement. Perhaps it’s time somebody penned the book ‘Why I’m no longer talking to straight people about sexual orientation’.
Hate speech is unlawful, as are harassment and libel. So freedom of speech is not unlimited. But it does include allowing people sometimes to voice views with which we disagree and not forcing them to promote what we believe but they do not. As a lesbian, I am used to living with the risk of violence, which to me is very different from what people think about who should marry. And I am old enough to have been an activist in the Thatcher years, when government leaders thought that Section 28 was in the public interest and many people agreed.… Read more »
I thought a lot about this case, because it has a lot of repercussions, but in the end I think the ruling was correct. However, some Christians have been celebrating the result as if it is now open season for saying what you like to LGBT people and refusing them services because of newly affirmed freedom of conscience and opinion. That is incorrect. The same Lady Hale who presided over this week’s Supreme Court judgment that you cannot be forced to write a message on a cake (or presumably elsewhere) that goes against your conscientious belief… also presided over the… Read more »
Thank you for this thoughtful post Susannah. It is often fiendishly difficult to separate the signal from the noise, and a lot of the noise has indeed been celebratory homophobia as you describe. There needs to be, I think, alongside explanations of why people may think this is the right judgement a recognition that lots of LGBT people will be deeply worried by it. I have yet to be fully convinced that I shouldn’t be, but to see many posters on here who are clearly supporters of LGBT rights going with the verdict gives me some good reason to pause… Read more »
The undecided grey area is this. Could Ashers lawfully refuse to make a cake with the message “Peter + Paul Wedding Congratulations”? I hope not but it is now unclear.
I think, Kate, Ashers probably could not lawfully refuse a cake for an actual wedding.
Not what the ‘law and religion in Australia’ link above thinks.
” It leaves room for “debate” in a real sense over the question whether the demand that a baker produce an artistic statement celebrating a same sex relationship, is a demand to produce a message or not. My inclination is to say that it is, and that the underlying logic which supports the bakers here would also be applicable in at least some cases where a religious baker was asked to produce a cake sending the “message” that same sex relationships are to be celebrated.”
But could they refuse particular wording? I suspect that they could not (and, as far as I can see, would not) refuse to supply a cake, but they might refuse to put the specific names on it—
Aside from this, whatever one’s personal views of the judgement (and, having read what’s written, mine lean towards Peter Tatchell and Savi Hensman) the Church of Ireland announcement is unfortunate. As Geoff L. says above, dignified silence would have been more appropriate.
I rather hope they could, actually. At risk of sounding a long way to my right, I think that the threshold at which businesses should be forced to take business they do not want should be set very high. In my life in the commercial world I was party to “no bid” decisions, for many reasons – no money in it, reputational risk, other company are idiots, other company might end up not paying, we can use the same resources to do better business, or sometimes just “bad feels”. Yes, the counter parties were here limited companies or governments, rather… Read more »
There is a bakery in the state of Colorado, in the USA, that refused to make a custom wedding cake for a gay couple. There was NO discussion of cake design. The moment the bakery owner discovered the cake was to be for a gay wedding, the bakery owner refused. The case went all the way up to the US Supreme Court, which ruled in favor of the baker on the very narrow grounds that a member of the Colorado civil rights commission showed bias against the owner’s religion. The opinion specifically did NOT rule against Colorado’s inclusion of sexual… Read more »
In the 70s there was a printer nearby – in Bury St E, I think – who refused to print anything to do with Halloween, on Christian grounds. We got asked to quote for some very odd things, but if it had been something against my principles, as distinct from illegal, I would simply have substantially raised the quote. Q: Why are you quoting £165 when your normal price is £32? A: Because the word would get around and I would risk losing at least 3 valued customers. Purely business decision – so sorry. Q: Which customers? A: Not at… Read more »
‘There are some who would say their faith and therefore they themselves are belittled by others supporting equal marriage’
Sheer false equivalence. LGBT people are demeaned and persecuted for who they are. It’s not about two differing opinions
***
Of course this is true. How many court cases either in the UK or the US have involved someone saying, “There are some who would say their faith and therefore they themselves are belittled by others supporting remarriage after divorce.”
An analysis from a human rights lawyer here: https://www.gaystarnews.com/article/ashers-baking-company-and-the-shaming-of-mr-lee which explains eloquently the profound unease I have been able to express here.
The flaw in Mr Cooper’s reasoning is to assert that “only a gay man could have dreamt up such an order”. It would have been quite possible for me, as a heterosexual man campaigning for equal marriage and being aware of the history of the repression of gay people in Northern Ireland (albeit from the outside) to have made such an order. But surely that is the point – it was part of a political campaign on a very contested issue, and, thank God, a very effective campaign in mainland Britain. The judgment simply states that no one should be… Read more »
John, I thought the argument was slightly more nuanced. True, a heterosexual could have ordered that cake; however the fact that it was a gay man that ordered it and the message was about a basic human right that others seek to deny him does make a difference. A good example might be that if I have to listen to a racist rant, I would find it extremely offensive, but as a white person, that offence would be qualitatively different for a person of colour who heard that rant. I believe the law could be capable of being nuanced there,… Read more »
Fr Andrew, I’m not sure if the racist rant example is necessarily parallel to the refusal to make a statement on behalf of a campaign – even if that campaign is on behalf of a human right. One is a positive insult – the other is a refusal to take one’s side. A sin of omission – a failure of justice, or even compasssion – but not a rant. I understand the feeling of rejection, but that is not something necessarily legally actionable. Concerning the heterosexual / gay difference in ordering the cake – I’m not sure of the ramifications… Read more »
“however the fact that it was a gay man that ordered it and the message was about a basic human right that others seek to deny him does make a difference.” OK, so let’s play that one out. Two people go into a shop, and each of them orders a cake saying “same-sex marriage: yes to this sort of thing”. One is gay. The other is not. Are you saying that the shop should be required to find out the orientation of the customer in order to assess whether or not the cake relates to a basic human right, or… Read more »
The easiest solution is to just bake the cake. However, I’m not convinced that the inability of a service provider to immediately tell if a person is of a member of a particular minority group should be a reason to exclude that service provider from the need to serve people without discrimination. Some protected characteristics are easily perceived; some not. Disability is not always perceivable, nor are mental health issues: this should not be a reason for discriminating against people with these characteristics, nor should it be in the case of sexual orientation. I agree that there is no elegant… Read more »
Let’s say a bakery owned and run by two lesbians was asked to create a cake with the message: VOTE NO ON SAME SEX MARRIAGE.Could the bakery decline to accept the order? If they did decline, how should the court rule?
Yes they could decline because once again they are declining the message not the customer.
After the Ashers bakery ruling it now appears they could legally decline to accept the order. That much is indisputable. If the question however is ‘should’ (in a pre-Supreme Court ruling world) the bakers be permitted to decline the order, I would suggest things are more complicated. 1) Should the lesbian-run bakery be permitted to decline a ‘vote no’ order: yes 2) Should a Christian run baker be permitted to decline a ‘support equal marriage’ order: no And the difference is you are not comparing like with like. A Christian is not deprived of anything if equal marriage is introduced.… Read more »
To follow up the race analogy, what about this example? There is a hypothetical campaign to grant financial restitution for black people for the centuries of disadvantage. Let’s say, £100,000 each, and a guaranteed place at a top university (in other words, positive discrimination plus) . This would obviously be highly contested, even by those who would acknowledge the historic disadvantage. Would you say that a black baker should be allowed to refuse to bake a cake politely (!) opposing this particular measure, but that a baker of asian origin (or white) should be compelled to bake a cake supporting… Read more »