The Freedom Blog

By Lorcán Price

Marie Antoinette is famously reputed to have remarked that the starving poor of Paris, having no bread, should instead eat cake; this would be part of her downfall. Now, whether the refusal to make a cake will leave a bitter taste for a Northern Irish baker is a question for the Supreme Court in London.

The case of Lee v Ashers Baking Company attracted international press coverage in October of last year when the Court of Appeal of Northern Ireland ruled that a small family owned bakery company in Northern Ireland was required, on pain of prosecution and a fine, to decorate a cake with the political slogan “support gay marriage”. The cake and slogan were ordered by activist Graham Lee. The Ashers Baking Company is operated by Daniel McArthur (26) and his wife Amy (27), who live as devout Presbyterian Christians with their two daughters.

The Northern Ireland Equality Commission, who funded the case against Ashers, argued that the McArthur family had discriminated against Mr Lee by not baking the cake with the political slogan. On the 24th October 2016 the Court of Appeal of Northern Ireland affirmed an earlier local court decision and agreed that the bakery had violated anti-discrimination law by refusing to bake the cake as ordered.

The case is now on its way to the Supreme Court in London. There the Justices will have to decide if Mr Lee’s expression of his political opinion through the medium of a sugar decoration on a cake is in fact a facet of his sexual orientation. Lord Justice Morgan in Belfast decided that; “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.” The Court brushed aside the freedom of religion arguments mounted by the McArthur family stating, “[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.”

Nevertheless, far from refusing to supply a cake, Ashers bakery were happy to provide a cake to Mr Lee, but not with the political message they objected to printing. The reasons advanced for that objection, contrary to the Court’s view, were neither “arbitrary” nor “abusive” but rooted in their religious beliefs. In effect, the Northern Irish Courts have decided that Christian business owners are required to print slogans and to engage in compelled actions that are clearly contrary to their deeply held beliefs.

Can the actions of the McArthur family really be classified as discrimination when they only objected to using their skills to design a cake that contained a message that contradicted their deeply held beliefs on the nature of marriage? Should people be forced, under threat of prosecution, to promote messages that they find profoundly disagreeable?

The overriding question for the Supreme Court will be the balance to be struck where freedom of religion is in apparent conflict with a general legal prohibition on discrimination.

On that question, the Supreme Court has a history of striking the balance against the religious claimants. In 2013 the Supreme Court found that the Christian owners of a small hotel had discriminated against two male civil partners by refusing them a double bed for two nights.

If they are unsuccessful in London, it may be that the McArthur family find themselves eventually petitioning the European Court of Human Rights in Strasbourg for vindication of their freedom of religion under Article 9 of the European Convention on Human Rights and Fundamental Freedoms.

The case, if it proceeds to the Strasbourg Court, could have significant ramifications across Europe in how religious freedom rights are reconciled with and balanced against anti-discrimination laws. Yet, for the McArthur family, they will be hoping that this case which started in their Belfast cake shop has a sweet ending for religious freedom.

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