Last year, we experienced a national debate over the right of Colorado cake shop owner Jack Phillips can refuse to make a special cake for a same-sex marriage due to religious objections in the Masterpiece Cakeshop case. I supported the position on Phillips as a matter of free speech as opposed to free exercise. Now Ireland has had its own challenge which is remarkably similar to Masterpiece Cakeshop including lower court rulings against the owners at the Ashers bakery, Daniel and Amy McArthur, in Northern Ireland by lower courts.
The UK’s highest court ruled that Ashers bakery’s refusal to make a cake with a slogan supporting same-sex marriage was not discriminatory in a unanimous decision.
The case began in 2014 when gay rights activist Gareth Lee, sued the bakery for discrimination on the grounds of sexual orientation and political beliefs after being refused a cake reading “Support Gay Marriage”. Lee had previously purchased cakes from the shop.Here is how the Court laid out the critical facts:
“On 8 or 9 May 2014, Mr Lee went into the shop and placed an order for a cake to be iced with his design, a coloured picture of cartoon-like characters “Bert and Ernie”, the QueerSpace logo, and the headline “Support Gay Marriage”. Mrs McArthur took the order but raised no objection at the time because she wished to consider how to explain her objection and to spare Mr Lee any embarrassment. Mr Lee paid for the cake. Over the following weekend, the McArthurs decided that they could not in conscience produce a cake with that slogan and so should not fulfil the order. On Monday 12 May 2014, Mrs McArthur telephoned Mr Lee and explained that his order could not be fulfilled because they were a Christian business and could not print the slogan requested. She apologised to Mr Lee and he was later given a full refund and the image was returned to him.”
Ashers lost the case and the subsequent appeal, but prevailed last week after a four-year fight. The Court rejected the notion that the couple actively discriminated against gay and lesbian customers:
“The Court of Appeal held that “this was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community” (para 58). This suggests that the reason for refusing to supply the cake was that Mr Lee was likely to associate with the gay community of which the McArthurs disapproved. But there was no evidence that the bakery had discriminated on that or any other prohibited ground in the past. The evidence was that they both employed and served gay people and treated them in a nondiscriminatory way. Nor was there any finding that the reason for refusing to supply the cake was that Mr Lee was thought to associate with gay people. The reason was their religious objection to gay marriage.”
The opinion is a refreshing departure in a country where free speech has been under continuing attack and erosion with the criminalization and regulation of speech.
Here is the opinion: Ashers Decision