BELFAST, Northern Ireland — The attorney general of Northern Ireland testified in court on Tuesday in favor of a Christian identified bakery that was fined last year for alleged discrimination for declining to print the phrase “support gay marriage” on a cake.
“I say very clearly, if it was a case where Mr. Lee had been refused some of Ashers excellent chocolate eclairs because he was gay or perceived to be gay I would be standing on the other side of the court,” John Larkin, QC told the Court of Appeals in Belfast on the second day of appeal proceedings over the matter.
“But it’s not about that,” he said. “It’s about expression and whether it’s lawful under Northern Ireland constitutional law for Ashers to be forced … to articulate or express or say a political message which is at variance with their political views, and in particular, their religious views.”
As previously reported, in May 2014, Ashers Baking Company in Newtonabbey—named after Genesis 49:20—was approached by a same-sex “marriage” supporter to bake a cake that was to feature the phrase, as well as the logo for the homosexual advocacy group QueerSpace. According to the Belfast Telegraph, the cake was for an event in observance of the International Day Against Homophobia and Transphobia.
Karen McArthur, the mother of manager Daniel McArthur, 24, initially accepted the order as she didn’t want the man to feel embarrassed. But as the matter was discussed with other family members, it was agreed upon that they could not go through with putting the message on the cake in good conscience before God.
Daniel McArthur told reporters that the company contacted the customer and offered a refund, explaining that same-sex “marriage” is against their Christian beliefs.
However, the customer, Gareth Lee, soon reported Ashers Baking Company to the Equality Commission of Northern Ireland, which in turn sent a warning to to McArthur, stating that he and his bakery had discriminated against Lee.
In November 2015, the Commission ordered the bakery to pay compensation or face legal action. As the McArthur’s refused, the case moved forward in court. Judge Isobel Brownlie then ruled against the McArthurs, declaring them “guilty of unlawful discrimination on the grounds of sexual orientation,” and ordered the bakers to pay a fine equating to nearly $800 U.S. dollars.
“This is direct discrimination for which there can be no justification,” Brownlie said. “The defendants are not a religious organization. They are conducting a business for profit and, notwithstanding their genuine religious beliefs, there are no exceptions available under the 2006 regulations which apply to this case.”
Asher’s Bakery has stated that it is willing to serve homosexuals in general—one would not know about another’s sexual behavior unless they had requested a cake for such reasons—but should not be forced to decorate cakes with messages that urge others to “support gay marriage” in violation of their faith.
The McArthur’s therefore appealed the ruling, and the case went back to court on Monday. Robin Allen, QC, which represented Lee and the Equality Commission for Northern Ireland in court, asserted that the bakers were not being forced to promote any particular message.
“It is no more forced speech than any of the delivery merchants or the post office or any of the companies that printed the numerous hoardings around Belfast and the rest of Northern Ireland for the Assembly elections this week,” he said.
Allen argued that the phrase “support gay marriage” and “sexual orientation” are inextricably linked, and therefore the McArthurs are guilty of discrimination against Lee based on his orientation.
But David Scoffield, QC, the barrister for Ashers, noted the bakery had served Lee without issue in the past, and that the refusal had nothing to do with his identity, which was also unknown to the McArthurs.
Scoffield said that if a heterosexual person had asked for the same message, for instance as an advocate, it would likewise have been declined. He outlined that discrimination must be against a specific person, not mere ideas or concepts.
“To say you can discriminate against the orientation of a cake is nonsensical,” Scoffield said.
Larkin made similar contentions, stating that Brownlie’s ruling runs afoul of constitutional law.
“Although the case for the plaintiff is put pleasantly and with every appearance of sweet reasonableness, what cannot be disguised is that the defendants are being compelled, on pain of civil liability, to burn a pinch of incense at the altar of a god they do not worship,” he told those gathered. “The constitutional law of Northern Ireland, supplemented by the ECHR, resists such a compulsion.”
He said it was instead the McArthurs who are being discriminated against because of their Christian identity.
“The direct discrimination is the requirement on pain of civil liability, either under the Northern Ireland regulations or the 1998 Order, to articulate a view, express a view which is hostile to one’s own political or religious views,” Larkin declared. “It is clear the county court judge has given a greater legal value to the right to express a view supportive of gay marriage than the defendant’s wish not to be compelled to express that sentiment…”
As previously reported, a homosexual rights activist who previously condemned Ashers has now also come to support the rights of the bakery.
“In my view, it is an infringement of freedom to require businesses to aid the promotion of ideas to which they conscientiously object,” Peter Tatchell said in an article in February. “Discrimination against people should be unlawful, but not against ideas.”