There is something about compelling private citizens in the running of their private business (even if that business involves the provision of goods and services to members of the public) to do or support something against their will and in contravention of their strongly-held and fully-legal personal beliefs that I find problematic and troubling (no matter how provocative, irrational, unpalatable or unsavoury I might personally perceive those beliefs to be). Freedom of conscience – the precursor to numerous other liberties such as freedom of speech, expression and religion – is universally-acknowledged as a vital human right by articles 18 and 19 of the Universal Declaration of Human Rights and is afforded absolute and unconditional legal protection by article 9 of the European Convention of Human Rights. Although there may be responsibilities and reasonable limits imposed upon the manifestation of this right for obvious reasons, as a supposedly-free society, we should still examine very carefully the possible impact of interference, challenges or threats made to actions arising out of it and its practical exercising. It might sometimes be difficult to advocate the protection of thought with which we fundamentally disagree – especially as the nuance contained therein can so often be misinterpreted as explicit support for the actual idea itself (as famously demonstrated by the Faurisson affair) – but we must stand up for freedom of conscience for the greater social good and – in the interests of consistency – as a matter of principle, assuming we seriously wish for our own personal thoughts and ideas to enjoy protection too.
We also happen to live in a liberal democracy and an integral aspect of such a society is the protection of the rights of minority groups (especially the vulnerable) from discrimination and against possible tyranny of the majority. Generally-speaking, this is why special protective treatment for certain characteristics and minority groups who do not seek to harm or intrude upon other elements of society is warranted. It is why equality legislation in liberal democracies typically protects citizens from discrimination on the basis of perceived distinctions arising out of characteristics such as age, disability, gender, race, religion, political beliefs and sexual orientation.
On the 30th of March, judgment was reserved by judge Isobel Brownlie in the case of Gareth Lee v. Ashers Baking Company Limited; a case that has really captured the public’s imagination in the north of Ireland and beyond. It has been under her consideration since. The case was brought by the Equality Commission on behalf of Gareth Lee, a previous patron of Ashers Bakery who is gay (he was one of Ashers’ “many gay customers“, in fact) and who requested an order from the bakery for a cake bearing the slogan “support gay marriage” last year. Karen MacArthur, an Ashers director who, like the other members of her family who operate the business, is a practicing Evangelical Christian, initially accepted the order from Mr. Lee in order to avoid an embarrassing confrontation within the confines of the bakery. The working day following the day of the acceptance of the order and payment, Mrs. MacArthur contacted Mr. Lee to “courteously and sensitively” inform him that she would be unable to fulfill the order on the basis of what he had requested; having scruples, she had had consultations with her family as well as with an elder of her church, the Trinity Reformed Presbyterian Church, and regrettably felt that she would be contravening her religious beliefs by printing a slogan on a cake endorsing gay marriage.
The debate surrounding this matter has become very polarised, so let me be clear on where I stand before any conclusion might be drawn; I strongly support equal rights for the LGBT community and marital rights for same-sex couples, but I feel just as compelled to defend the right of others to disagree with that position and to enjoy that right by remaining free from compulsion to act in a certain manner contrary to their personal constitution, so long as they are not discriminatory, or, more specifically, by remaining free from compulsion to explicitly support a position that is evidently socially and legally contentious through the provision of a service that they do not in fact offer to any person. It is worth considering that Ashers were asked to provide a service in support of something that is not presently lawful. (That is not to say that I agree with the present lack of legal recognition for gay marriage; as stated, I am a strong advocate for legal recognition, for I do not feel that making distinction in this area on the basis of sex, gender or orientation is an acceptable or tenable means by which to discriminate against persons or by which to deny persons the rights enjoyed by opposite-sex couples through marriage.)
The main legal instrument governing equality or discrimination matters relating to sexual orientation and relevant to consideration of the case at hand is the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006. Section 3(1)(a) states that “a person (“A”) discriminates against another person (“B”) if, on grounds of sexual orientation, A treats B less favourably than he treats or would treat other persons”. Section 16 does grant exception for organisations relating to religion or belief, but it must be acknowledged that the regulation “does not apply to an organisation whose sole or main purpose is commercial”
For many commenting on the issue, the bakery’s refusal to make the requested cake has been a clear-cut case of discrimination against Mr. Lee on the basis of his sexual orientation. As much as I sympathise with Mr. Lee for the reason that he was unable to source from Ashers a cake that conformed to his preference, I do not concur with the interpretation that he was on the suffering end of such discrimination. Of course, the issue of a possible contract having arisen from the initial acceptance of Mr. Lee’s order by the bakery may complicate matters; the court may or may not find there to have been a breach, although I suspect it will not due to the absence of consideration as, despite the order having been taken, payment was not kept and a refund was returned. Nevertheless, I primarily wish to deal with the claim of discrimination and I am not convinced that the case meets the legislative criteria for such a claim to hold.
The matter is more nuanced than the bakery simply having rejected Mr. Lee’s order on the basis of his sexual orientation. I do not feel that it is remotely necessary either for the bakery to appeal to their Christian beliefs in order to demonstrate that it would be unreasonable to expect or force a particular business to provide a service or create a certain product contrary to their private constitution. Whilst there may be an argument there for breach of contract, on the discrimination aspect, I feel that the Equality Commission’s case is misguided, which is surprising seeing as they are the overseers of equality and discrimination law in the north of Ireland.
Bakeries are free to decide which types of cakes and products they sell. Bakeries, like any service, are free to turn down custom on the basis that they do not possess the means, ability, expertise, competence or qualification to produce what is asked of them and customers are free to look elsewhere in the market for a provider who can serve them what it is they require. Business can be turned away so long as the turning away is not discriminatory in nature. The fact that the Ashers Bakery would not sell a cake featuring the slogan “support gay marriage” to anyone, gay or straight, but that Mr. Lee was free to purchase any other available cake supplied by the bakery and had even been a customer of the bakery in the past, along with many other members of the gay community, demonstrates that the issue, crucially, was not with any characteristic of Mr. Lee’s or, more specifically, with his sexual orientation.
There is no legal requirement either for a business to provide a list of services, by way of terms, conditions or other means, that they do not offer. Such lists would be entirely impractical by virtue of their potentially-infinite nature and would place an unreasonable onus upon service providers to outline every conceivable thing that they might not be able to offer or supply for whatever reason. Even if the bakery had a published set of terms and conditions specifically outlining what they did not offer (or even what they did not offer to whom), these hypothetical terms and conditions would still be subject to existing equality legislation.
Section 3(1)(b) of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 has broader scope than section 3(1)(a) in protecting against indirect forms of discrimination. Such unwarranted discrimination will be deemed to have occurred if:
A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same sexual orientation as B; but —
(i) which puts or would put persons of the same sexual orientation as B at a particular disadvantage when compared with other persons;
(ii) which puts B at a disadvantage; and
(iii) which A cannot show to be a proportionate means of achieving a legitimate aim.
Whether or not this definitely applies generally to, say, the provision of cakes by bakeries, I am not wholly certain and the judgment will surely confirm whether it does or not, but I will assume that it does simply for the purpose of discounting its possible application to this case at hand. By my reading, if it were to apply, Mr. Lee would have to prove that he was disadvantaged in some way by Ashers. Whilst Ashers might not have provided him with the cake he requested, this does not necessarily mean that he was disadvantaged. To be in some way disadvantaged, he would have had to have been refused the same type of cake that other people have had or could have made for them or of which others have been or could be able to take advantage. He would have to have been prevented from being supplied with a cake identical to one that someone else could have gotten by virtue of some enforced criterion that indirectly left him disadvantaged or compromised due to his sexual orientation. Even if Mr. Lee “felt unworthy” and “like a lesser person”, I am unable to see how he would be able to prove he was disadvantaged. In spite of Ashers’ “policy”, he remained free, like any other person, to order any type of cake that they did supply.
Section 28(1) of the Fair Employment and Treatment (Northern Ireland) Order 1998 also relates to potential discrimination in the provision of goods and services. It states:
It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a person who seeks to obtain or use those goods, facilities or services —
(a) by refusing or deliberately omitting to provide him with any of them; or
(b) by refusing or deliberately omitting to provide him with goods, facilities or services of the same quality, in the same manner and on the same terms as are normal in his case in relation to other members of the public or (where the person so seeking belongs to a section of the public) to other members of that section.
The Equality Commission attempted to widen the grounds of the case by arguing that Mr. Lee was discriminated against on the basis of his political opinion due to the religious beliefs of the MacArthurs. The MacArthurs were happy to accept that their decision to decline Mr. Lee’s request was based upon their faith, but, whilst the 1998 order does offer protection to the beliefs and opinions of a potential customer, it does not offer protection from those of the goods or service provider, except where discrimination has personally arisen against the customer as a result, so to extend its application to the beliefs and opinions of the MacArthurs is not warranted. The beliefs and opinions of Mr. Lee were irrelevant to the decision to decline the order for the cake; the decision was taken purely on the basis of the MacArthurs’ own beliefs and their difficulty with providing a service that they felt endorsed something with which they did not agree. For reasons similar to those outlined above, if Mr. Lee was to successfully rely on the 1998 order, he would have to prove that he was denied a good or service that Ashers actually provide in the first place to other customers generally or on the basis of a sexual orientation or political opinion favoured over his by the MacArthurs.
Whilst it also may be true that Ashers provide frivolous Hallowe’en cakes – the celebration of Hallowe’en, which is of pagan origin, is opposed by the Reformed Presbyterian Church – this is, at worst, indicative of possible double standards in terms of what they supply, but it does not demonstrate that discrimination occurred in terms of who they supply or against Mr. Lee on the basis of his sexuality or political opinions. Ashers are free to make and supply whatever cakes they wish for whatever reason they wish – the reasons might even be hypocritical – so long as no discrimination occurs on the basis of who is being served (and so long as they do not fall foul of other existing laws).
If it is deemed that Ashers are in breach of equality or anti-discrimination legislation, it will present us with a ludicrous and frightening vista. The Jewish tattoo artist would be compelled to adhere to a request for the provision of a Nazi swastika tattoo or face legal penalty. The pacifist t-shirt printer would be compelled to adhere to a request for the provision of a t-shirt bearing the slogan “support war”. The immigrant baker would be compelled to adhere to a request for the provision of a cake bearing the slogan “immigrants out”. A Muslim printer would be compelled to adhere to a request for the provision of a pamphlet featuring cartoons insulting the Prophet Muhammad. For these reasons, I will be very surprised if judge Brownlie finds in favour of Mr. Lee and the Equality Commission.
In direct reaction to the taking of the case by the Equality Commission, Paul Givan of the DUP has proposed an amendment to the existing equality legislation in the form of the Freedom of Conscience Amendment Bill. This has been popularly dubbed “the conscience clause” and seeks to provide a special exemption for those running a business from the general application of the legislation based on their religious belief “so as to [make it lawful for them to] avoid endorsing, promoting or facilitating behaviour or beliefs which conflict with [their] strongly held religious convictions”. Sadly, I suspect this action is rooted in the desire of the socially-conservative political representatives of the Christian right to cynically exploit the tension and concern aroused by the Ashers situation for their own ends as such a proposal is both premature (judge Brownlie has yet to even offer her verdict) and unnecessary. Its foreword states:
The [Ashers Bakery] case highlighted the fact that some equality legislation, passed with the intention of protecting minorities, is having an adverse effect on those with religious belief when it comes to the provision of goods and services.
I believe that this is wrong and that there should be legislation in place that strikes a balance between the rights of people not to be discriminated against and the rights of conscience of religious believers. That is why I am consulting on this Bill as a remedy to this problem.
Considering a judgment has not been made by judge Brownlie, Givan’s (either dishonest or mistaken) assertion that equality legislation at present is having an adverse effect on those with religious belief and meaning they are “effectively required to … act in violation of their faith identity, or lose their livelihood” has not yet been proven to be true, nor is it likely that it will be proven to be true for the reasons I have outlined above. There is already adequate protection for freedom of conscience under the current legislative framework, for no business is compelled by any equality legislation to endorse something in the provision of a good or service that falls foul of the personal beliefs of its operators whilst not discriminating between potential customers. A reasonable balance between equality rights and equality obligations already exists.
Post-script added on the 18th of April, 2015: Since writing the above piece, I have been made aware of this professional legal summary of the case, its merits, the relevant legislation and the possible implications for freedom of conscience and expression if the action was to succeed. It is the opinion of Aidan O’Neill QC; it corrects some inaccuracies of my own and clarifies some uncertainty in the above piece as to which legislation Ashers Bakery have been accused of being in breach, but, otherwise, it is broadly in line with my feelings on the matter. To be clear, Ashers were alleged by the Equality Commission to be in breach of sections 5 and 24 of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 or sections 28 and 35 of the Fair Employment and Treatment (Northern Ireland) Order 1998.
Update as of the 25th of May, 2015: Judgment on the Ashers case was delivered on the 19th of May and can be read here. The judgment appeared to fundamentally disagree with my own line of logic outlined in the piece above, which surprised me, but it is well worth a read. It remains to be seen whether or not Ashers will appeal the judgment. There is further discussion (to which I have contributed) about the verdict here on Slugger O’Toole.