Outcome not so gay for UK’s sexuality activists

(Photo: Ashers Baking Company who won their case after a four-year fight)

The outcome of the ‘gay cake’ case marks the biggest turnaround in anti-Christian discrimination in Britain after hanging on by the merest legal thread.

Just one man stood between justice for Ashers (the substantial Belfast-based bakery firm at the center of the row) and financial ruin: John Larkin, Northern Ireland’s Attorney General and a conservative Catholic, elected to the post in 2010.

Northern Ireland Attorney General John Larkin

The case hinged on a cake which the bakers agreed to make for gay LGBT activist, Gareth Lee, but refused to write the message ‘Support gay marriage’ in icing on the top.

Bakery owner, Mrs Karen McArthur who owns the 22-year-old firm with her husband, argued that their business is Christian and takes its name from the Old Testament, therefore, could not promote gay marriage.

Two lower courts ruled against the firm on discrimination grounds, grappling with equalities issues and failing to consider the freedom implications.

This came despite Ashers’ barrister arguing that it was “the content of the cake, not the characteristics of the customer, that were critical to their decision.”

But Northern Ireland’s top legal professional took the bakery’s side - knowing that, by doing so, he would have the legal powers to appeal one level higher than Northern Ireland’s own judicial system - the Supreme Court in London.

The Attorney General intervened in the proceedings in the Court of Appeal’s second round to challenge the legislation. He questioned the validity of the Fair Employment and Sexual Orientation Regulations, as they impose civil liability for the refusal to allow the expression of a political opinion or a view on a matter of public policy, contrary to the religious belief of the person refusing to express that view.

The AG made the case that religious beliefs and political opinion have special protection under the Northern Ireland constitution.

They therefore take precedence over other grounds such as sexual orientation.

Mr. Larkin argued that this legislation directly discriminated against those who hold particular religious beliefs or political opinions.

In essence, Northern Ireland’s chief legal advisor questioned whether the law itself discriminated against the McArthur family and others, contrary to prior constitutional safeguards, and should therefore be struck down.

“The Attorney General legally opened up new channels by joining Ashers’ side,” explains Peter Lynas, a former barrister and Evangelical Alliance’s Northern Ireland Director.

“He argued after the lower court had ruled that it basically was so misreading the law that the law itself would need to be struck down,” continued Lynas, who attended all three hearings.

Deft

In his submissions, Mr Larkin noted with considerable linguistic deftness that “the case for Mr Lee is put with the appearance of sweet reasonableness but it cannot be disguised that Ashers are being compelled on pain of civil liability to burn a pinch of incense at the altar of a god they do not worship.”

John Larkin, who was educated by Catholic religion, was the first Attorney General for Northern Ireland after the role was devolved from London. He is also the first non-political appointee, sitting neither at Stormont nor Westminster.

Message

Lady Hale spoke for the five unanimous judges in the Supreme Court sitting for the first time in Belfast on October 10, 2018, when she ruled that Ashers had taken issue with the message not the customer, whom they had served before.

In her ruling she said: “It is deeply humiliating and an affront to human dignity to deny someone a service because of that person’s race, gender, disability, sexual orientation or any of the other protected personal characteristics. But that is not what happened in this case and it does the project of equal treatment no favors to seek to extend it beyond its proper scope.”

She added that the “bakers could not refuse to supply their goods to Mr Lee because he was a gay man or supported gay marriage but that is quite different from obliging them to supply a cake iced with a message with which they profoundly disagreed.”

Hierarchy

It is unlikely the campaign of attrition between gay activists and conservative Christians will end here.

According to sources, other cases are pending that will test the balancing between equality and human rights laws in Britain, as is the case in the US, which had its own ‘gay cake’ case – the Masterpiece Case involving a Colorado baker - where religion, seen by many activists as anti-gay, becomes a target.

There is a clear contest of a hierarchy of rights. Northern Ireland’s Equality Commission is separate from its Human Rights Commission, which may have allowed a failure of balance and led it to it giving e preference to sexual orientation over freedom of conscience and not therefore required to do the necessary legal nuancing in any contest within the hierarchy of rights.

The success of this case does not mean that, had the Ashers been asked directly to bake a cake for a gay wedding, they could in conscience have refused and remained within the law.

But it could mean that freedom of speech may be relied on more often in defending discrimination claims.

“This is a hugely significant case. It’s a great result for everyone because freedom of speech for everyone is assured by this ruling. It was never about a gay cake.” said Peter Lynas.base