The Gay Cake was supposed to be back in court today. For those who have not been aware of this story, Ashers Bakery, run by a Christian couple in Belfast, was last year found guilty of discriminating against a gay customer, Gareth Lee. Asked to bake and ice a cake bearing a message celebrating gay marriage, they initially accepted but then refused the commission and were fined £500 in a case brought by the NI Equality Commission. (See Frank Cranmer’s helpful summary here and also the UK Human Rights Blog) As I write, the case has been adjourned and should now be heard in May.
The story has every element of one of the classic narratives of our day – equality, human rights, religion, discrimination, apparent homophobia – although the baked goods element adds a certain whimsical touch that elevates it from the inside pages. This is a story of patisserie as freedom of speech.
Unlike many such narratives, which involve a tortured balancing of rights, this one seems, to me a least, to be reasonably straightforward: the original call was wrong and the McArthur family, who run Ashers, should have been able to refuse the request.
It says something of the climate of current debate that some readers who have got this far down this blog will automatically think this is a homophobic argument, but the fact that Peter Tatchell, not famed for his homophobia, has reached the same conclusion might give those given to such kneejerk reactions pause for thought.
The reason for this argument may be seen means of a short thought experiment. Plenty of straight people are pro gay marriage. What would have happened if one of them had entered Ashers Bakery, asked for the same cake, and been refused? Would that have constituted an act of anti-gay discrimination? As others have remarked, attitudes to gay marriage are not synonymous with sexual orientation. Many straight people support gay marriage while some gay people, such as Rupert Everett and Dolce and Gabbana oppose it. To refuse this order is discriminate about ideas not people.
Let’s try another. Let us imagine a Catholic bakery, this time in England, into which a pro-abortion campaigner stepped requesting a cake iced with the hashtag Shout your abortion. They refuse. Guilty? A Muslim bakery refuses a cake proclaiming Jesus is Lord? A secular one turns down one calling for Sharia Law?
Such examples are deliberately provocative (although the whole cake-and-icing thing makes straight-faced argument a challenge here). They are intended, rather, to make the point. What is at issue here is not the customer but the message. Had Ashers refused to sell Mr Lee an iced bun because he was gay they would indeed have been guilty of discrimination. But the very fact that this decision technically means they could be held guilty of anti-gay discrimination for refusing to serve a straight customer shows how questionable it is.
Judge Isobel Brownlie’s ruling stated that the law required Ashers to “supply…services to all….subject to the graphic being lawful and not contrary to the terms and conditions of the company.” That sounds commendable but is it? Does it not simply say that the law of the land automatically trumps any moral considerations in business, that there is no legitimate space for moral judgment? Are there not certain beliefs that are legal yet morally repugnant, or at least dubious? Should we not allow businesses to exercise some moral agency? The EDL is, last time I checked, a legal organisation. Yet, I’d be reluctant to sell its supporters a celebratory gateau.
This emphatically does not mean that the McArthurs were therefore morally right to do what they did. Some will think they were. More, I suspect, will think they were not. And more still will think this is something of a storm in a cake tin and that there are better things for bakers, consumers of baked products, and the courts to be doing that talking about homophobic icing.
Nor does this necessarily mean that fault lay with Judge Brownlie’s decision as opposed to the legislation itself, or indeed both. Having read the decision and various comments on it, I still find myself unclear on this question.
Rather, it is rather to say that this is (yet) another example of how we are apt to confuse moral and legal issues today. It is to say that the proper adjudication for an issue like this is the court of local public opinion, which may praise or condemn the McArthurs as it sees fit. And it is to say that as soon as we find ourselves in a position in which the state tells us not only whom we may or may discriminate against, but what, we ought to be concerned.
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Image by Gandy Dancer from wikimedia.com, available in the public domain