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It’s interesting to reflect on why Lee v Ashers Baking Company Ltd, or the gay cake case as it’s become known, has received such widespread media attention. I doubt that it is because the case represents the acme of conflict between religious freedoms and LGBT rights. Perhaps it is because it is perceived as a straightforward, relatable example of everyday discrimination? Or more likely, the national obsession with the Great British Bake-off has created an appetite for any cake related story, and in particular one featuring the Sesame Street duo, Bert and Ernie (now famous for not being gay).
Whatever the reason, the point about Lee v Ashers is that it is very much not a straightforward example of discrimination in action. Mr Lee, a gay man, who had associations with an LGBT community group, placed an order with Ashers Bakery, a company run by Christians with firm beliefs that marriage can only be between a man and a woman. Although Ashers initially accepted the order for a cake featuring the words “Support Gay Marriage”, it subsequently cancelled the order on the grounds that it felt unable to produce the statement which Mr Lee had requested on the cake. He was given both an apology and a full refund.
What Ashers did not do was to refuse to sell Mr Lee a cake on the grounds of his sexual orientation or because he was a supporter of gay marriage. It was able to evidence non-discriminatory treatment of its gay customers and gay members of staff. In addition, it was able to establish that had the cake been requested by a heterosexual customer, it would similarly have declined to fulfil the order. The refusal to supply the cake was not direct discrimination on grounds of sexual orientation.
What presented Ashers with a problem was the slogan requested by Mr Lee, not Mr Lee himself. The objection was to the message and not the messenger. This engaged human rights issues. The Supreme Court found that Ashers were entitled under articles 9 and 10 of the European Convention on Human Rights to refuse to produce a cake iced with a message with which they profoundly disagreed. The principle would hold regardless of what that message was and the fact, that manufacturing the cake could not really be construed as in any way promoting or supporting the cause.
So the gay cake case was really about freedom of expression, a right which Bert and Ernie would surely be happy to support, even if they are just good friends.
11 October 2018
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