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Lee vs McArthur & Ors: The Gay Cake Case Analysed

We learnt this week you can both have your cake and eat it. That is, at least, if it’s gay cake. I’m speaking of course about the sexual discrimination appeal in Northern Ireland, Lee v McArthur & Ors. A difficult case indeed, as striking the balance between religious liberty and minority rights is an acutely difficult task within a liberal democracy. Pluralism is to prevail — or so we are told.

But I don’t think the Court’s decision was right. I believe the sloppy logic on the Court’s part lead to an unjust balance. I would (non legally) have found in favour of the bakers on the point of discrimination but nonetheless awarded the customer compensation. Let me explain why.

At the outset of its judgement the Court was undoubtedly right to emphasise the fact that ‘strongest opposition to the decriminalisation of homosexual acts between consenting males came from the religious community’, and, importantly, that ‘the LGBT community should feel able to participate in the commercial life of this community freely and transparently’.

Indeed they should. But this case was not about individual persecution of a member of the LGBT community: Ashers, the bakery, did not deny the defendant their services on the basis of their objection to his individual sexuality. On the contrary, it had been recorded in the evidence that Ashers had provided Mr Lee their services on a previous occasion. No, instead this case was about the bakers’ conscientious objection to the message, or idea that the cake would represent.

As Peter Tatchell so eloquently illustrated in the The Times this week, these facts really make the case about freedom of expression. Tatchell provided some persuasive counter examples that we have to consider as a result. Whether a Jewish publisher should be forced to print a holocaust-denying book? Whether a Muslim newspaper should be forced to print pictures of the Prophet?

Though I am resistant to the idea that companies have equivalent political or religious rights as persons — see the effect the US Supreme Court’s judgement in Citizens United v. FEC had — there must nonetheless be a margin of appreciation given for genuine religious objection. Discrimination is against people; not ideas. To argue otherwise would replace the tyranny of the majority with the tyranny of unsubstantiated legal rights.

The Court, however, resisted dealing with this argument. Albeit indirectly it argued that ‘the benefit from the message or slogan on the cake could only accrue to gay or bisexual people’, and so ‘there was an exact correspondence between those of the particular sexual orientation and those in respect of whom the message supported the right to marry.’

I do not think that is correct. On the contrary, suppose for example that a heterosexual mother had requested a cake for her lesbian daughter. The mother wished to support her daughter in life, and believed that the achievement of same-sex marriage would bring comfort to her daughter, and concomitantly happiness to herself. Thus she too would gain a benefit. The nebulous nature and fault in the original premise is sufficient to disregard the Court’s conclusion.

There are also, I should add, gay and bisexual people who legitimately disagree with same-sex marriage. They, like the bakers in this appeal, hold legitimate religious beliefs that conflict with the principle of same-sex marriage. It is not evident how they derive a benefit from such a message.

But the Court did not see this distinction between people and ideas. Its reasoning was sparse to justify its conclusion that ‘if businesses were free to choose what services to provide to the gay community on the basis of religious belief the potential for arbitrary abuse would be substantial’. That is true; but it is quite evidently not the issue at play here. We should be quite worried that rights are being misused in such a way.

All said, the case in my eyes turns on the (again non-legal) issue of advertisement. I believe that if a company is made up of religious persons to such an extent that the company itself has a religious policy on matter x, then it should be overt. The obligation falls on the company to make plain and present to all customers what its policy is, particularly with their advertising. That did not happen with Ashers, and so I believe the defendant quite justly should be entitled to compensation for being misled.

The beauty of the market means that in doing so Ashers and their like would be paying, in many people’s eyes, for their bigotry. I have heard that the so-called ‘pink pound’ is quite strong. But that is their choice — and their loss.

A long-observed result of democracy is that the tide of opinion flows quickly and strongly. The debate, too, is red hot and burns brightly. But for better or worse rights were given to stem the tide of public opinion. They are needed fundamentally to protect the most vulnerable individuals within society. They are not, contrary to what the Court effectuated in this case, about deciding what political views are en vogue. We must not take them for granted.

Ed Mordaunt

 


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