The Icing on the cake: Now the tit for tat starts

Daphne Romney QC

In this blog Daphne Romney QC further considers the Supreme Court judgment in Lee v Ashers Baking Co. Ltd.

Last week, the Supreme Court handed down judgment in Lee v Ashers Baking Co. Ltd. in which it held that the bakery had not discriminated against a customer on grounds of sexual orientation, or religion or belief, in refusing to bake him a cake with the message ‘Support Gay Marriage’.  As anyone would have been refused such a cake, the refusal was not on the grounds of Mr Lee’s sexual orientation and the message was not indissociable from sexual orientation. Although there was a closer match between the message and political belief, the Supreme Court held that the owners of Ashers were entitled to refuse to ice the cake with the message because requiring them to do so would force them to express support for, or be associated with, a belief with which they, as practicing Christians, profoundly disagreed. Articles 9 and 10 of the European Convention of Human Rights protected the owners’ freedom of religion and freedom of expression. Because of this the relevant Northern Irish legislation­–the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 and The Fair Employment and Treatment Order (Northern Ireland) 1998, the language of which mirror the corresponding provisions in the Equality Act 2010–could not be read so as to oblige them to bake a cake on pain of a fine or an order to pay damages. Baroness Hale PSC said in paragraph 56: ‘FETO should not be read or given effect in such a way as to compel providers of goods, facilities and services to express a message with which they disagree, unless justification is shown for doing so.’ This extended in her view to any message on the cake, including support for a political party or religion or support for living in sin.

Unsurprisingly, the judgment was hailed as a victory for Christians. Today’s Belfast Telegraph quotes Amy McArthur as saying: ‘I would say to other Christians to not be afraid, to take your stand for God's word because He is so faithful and He will bring you through it’. Her husband Daniel added: ‘People ask you, “Was it worth it, going through all this?” And I answer them, “Absolutely, yes”. This judgment carries so much weight, because it guarantees free speech for Christians all over the UK."’ The judgment was not only welcomed by Christians. On Wednesday, Peter Tatchell, the eminent campaigner for gay rights, welcomed ‘this important liberal principle’, adding: ‘Discrimination against people should be illegal but not discrimination against ideas and opinions’.

Last week in my blog, I posed the question: what actually is a message? (https://portal.cloisters.com/daphne-romney-qc-considers-the-supreme-courts-judgment-in-lee-v-ashers-baking-company-ltd-and-others/). ‘Support Gay Marriage’ is clearly a message, but is a wedding cake for a same sex couple in itself a message? What if the icing on the cake congratulates the groom and groom or bride and bride by name and wishes them a long and happy marriage? Would that also be a message which the McArthurs could have refused? Baroness Hale referred to a parallel case in the US, Masterpiece Cakeshop v Colorado Civil Rights Commission, 584 U.S, in which the Supreme Court was divided on the issue of whether the creation of a cake was in itself artistic expression protected by the First Amendment. The case was not decided on this point, but instead on the unreasonable conduct of the Commission. However, a number of the judges felt that the baker’s First Amendment rights would have been infringed in being forced to bake any cake. Justice Gorsuch, with whom Justice Alito concurred, distinguished between an ordinary wedding cake and a same-sex wedding cake. ‘Suggesting that this case is only about “wedding cakes”—and not a wedding cake celebrating a same-sex wedding—actually points up the problem. At its most general level, the cake at issue in Mr. Phillips’s case was just a mixture of flour and eggs; at its most specific level, it was a cake celebrating the same-sex wedding of Mr. Craig and Mr. Mullins [the customers].’ On the other hand Justice Ginsburg, with whom Justice Sotomayor concurred, said that the refusal was ‘for no reason other than their sexual orientation, a cake of the kind he regularly sold to others. When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wedding—not a cake celebrating heterosexual weddings or same-sex weddings—and that is the service Craig and Mullins were denied’. 

The ramifications have already started. Perfocal, a photography business which had been booked online to take photos of the McArthurs outside the Supreme Court, refused to hand them over and returned the booking fee after realising that the client was The Christian Institute, a lobby group which spent hundreds of thousands of pounds backing the bakery in their legal challenge. Perfocal’s founder, Tony Xu, said: ‘We appreciate that this looks like tit for tat, and it is … In short, we welcome customers from all backgrounds. When our photographer on the ground learned what it was while doing the job, they felt immediately uncomfortable with the situation, as many members of the public are, but remained professional. As soon as I found out though, I realised this was an opportunity to highlight exactly why this kind of result is damaging. This isn’t just about standing up against discrimination, I hope our stance serves as an example of exactly where this kind of judgement could lead us. Where does it end?’

Mr Xu is therefore refusing to supply the photographs to its client because it disapproves of its, and the McArthurs’, stance on same sex marriage. So what next? Maybe Perfocal’s current or potential suppliers will refuse to supply it with film or cameras or washing up liquid because it does not want to be associated with Perfocal’s message on tolerance for same sex marriage and opposition to discrimination.  Would that be legal? Would that be a forced expression of support for same sex marriage? As Mr Xu asked, where does it end?

In the case of Ashers, it offered a service to members of the public: they would ice a cake if one was ordered. In cross-examination, Mrs McArthur agreed that there was no restriction as to what kind of message could be iced. This then is not the same as the example some have cited in supporting the judgment, namely that you cannot go into a Muslim or Kosher café or bakery (or, for that matter, a vegetarian one) and ask for a bacon sandwich. That order would be refused because none of those establishments serves pork products. In this case, Ashers would doubtless have baked a ‘No Gay Marriage’ cake. The situation is not analogous. If Nigel Farage goes into a salon to get a haircut, could he be refused because of his political views on Brexit and immigration? Probably not. But what if he asked for a haircut specifically because he was speaking at a political rally and wanted to look his best? Would that be refusing the man because of his belief or because of his message? It was suggested to Mrs McArthur in cross-examination that she could have supplied the cake in a plain box or wrapped in tissue had she not wanted it to be associated with Ashers, and she agreed. But clearly she felt that the mere act of producing such a cake was in itself an association with its message. What degree of separation is required before it becomes the man and not the message? There will be more cases before we find out.