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Why Ashers case makes humane and sane debate about same-sex marriage less, not more, likely

Legal confusion is rife in the wake of the Court of Appeal's decision over 'gay cake' dispute, says Alban Maginness

Published 02/11/2016

Colin McArthur, Karen McArthur, Ashers bakery boss Daniel McArthur and his wife Amy talk to the media following the Court of Appeal decision
Colin McArthur, Karen McArthur, Ashers bakery boss Daniel McArthur and his wife Amy talk to the media following the Court of Appeal decision

In the wake of the Court of Appeal's decision in the Ashers case, there are more questions to be answered than before. Far from clarifying the legal position for the ordinary butcher, baker or candlestick maker, there is now puzzlement, uncertainty and confusion.

The Equality Commission, which took the case against Ashers in the first instance, has emerged from its usual low profile into the glare of the public arena to justify its decision to take a case involving such a seemingly trivial issue as the purchase of a cake.

In a politely phrased reprimand, the Court of Appeal suggested that some form of advice or assistance could have been used by the Equality Commission prior to the case coming to court.

The decision of the court in this case will make many actively religious and law-abiding Catholics and Protestants disturbed and unsettled, and very wary of the way the law is interpreted by the courts.

If anyone thought that this decision would receive plaudits and a warm welcome, it has had an opposite effect. Criticism has been widespread and coming from some unusual suspects.

Some pro-gay activists and liberal commentators and newspapers, together with more conservative elements, have all voiced their real concern that the freedom of expression of individuals, such as the McArthurs of Ashers bakery, was being curtailed.

Whenever The Guardian and The Daily Telegraph, coming as they do from polar opposites, simultaneously and spontaneously questioned the adverse impact of this judgment on free speech, there is something amiss.

Originally, this case was based on the proposition that Ashers Baking Companyy had discriminated against the customer because he was gay, but this was abandoned.

Therefore, what was in question in court was whether Ashers was contractually obliged under the Sexual Orientation Regulations 2006 to carry out the inscription of a pro-gay marriage slogan on a cake.

It was the expression of an opinion for a political campaign, not a case of discrimination against a gay customer, that was in issue.

Was Ashers bakery legally obliged to carry out this inscription? The court said yes, it was, because Ashers bakery was not in "fact" endorsing the pro-gay marriage slogan, because it was only making it.

As a "fact", the court found that by putting this slogan on a cake it was not endorsing the slogan, which was clearly against the McArthurs' deeply felt religious view that marriage was between a man and a woman.

Some may find that the determination of that "fact" by the Appeal Court hard to understand. Surely, there is some perceived attachment of support if you design and make a political slogan on a cake? If a printing firm willingly agrees to print Mein Kampf, does that not, at least initially, convey the view that that printing firm may have some sympathy for the extreme contents of Adolf Hitler's book?

In real life, are you not associated with the message if you are, effectively, the messenger?

The court's verdict was critically, but succinctly, summed up by former Presbyterian Moderator the Rev Norman Hamilton, who said that he was concerned by the apparent limiting of freedom of conscience and free expression in this case.

The court also found that, in any event, you as a baker could remedy your religious or political dilemma by restricting your business offering; for example, specifically excluding political or religious slogans. But is it as neat as that in everyday business?

Or what happens if a loyalist T-shirt manufacturer on the Shankill is asked to produce a T-shirt commemorating the IRA campaign?

Is it realistic for the court to say he must either produce such a T-shirt, or to protect himself by restricting his trade to simply non-political and non-religious tee-shirts?

Apart from ringing his solicitor, how is the ordinary businessperson in the daily grind of making a living to know when it is right to say no to a customer?

The proposition that Ashers bakery was being forced to make a statement in favour of gay marriage with which it disagreed has been roundly dismissed by the court. However, to the ordinary citizen there is still the strong perception that Ashers was being forced against its will to carry out an order and, in doing so, would have been endorsing support for a political opinion that it profoundly disagreed with.

If the court is correct, and this is the outworking of anti-discrimination law, then where lies free expression and freedom of conscience?

The debris left behind by this case will make it more difficult to have a measured and more respectful debate on same-sex marriage.

The intense media hype and upset caused by this case will make a political resolution of this issue even more problematical.

Belfast Telegraph

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