Belfast Telegraph

Ashers gay cake case: Bakery barrister tells court there was 'no discrimination' over order refusal

By Deborah McAleese and Lesley-Anne McKeown

There was no discrimination in a Christian bakery's decision to decline an order for a cake bearing a pro-gay marriage slogan, a court has been told.

A lawyer for the family-owned Ashers Bakery said the refusal had been down to the content of the cake and was not connected to any characteristic of the customer.

David Scoffield QC said: "The defendants neither knew nor cared about Mr Lee's sexual orientation or his religious beliefs, if any, or his political opinions.

"The reason why the order was declined was because of the content and had nothing to do with a feature of the person making the order, or those with which he was associated."

Northern Ireland's Equality Commission is taking the legal action against Ashers Bakery on behalf of the gay rights activist customer whose order was rejected.

Gareth Lee, a volunteer member of the LGBT advocacy group Queer Space, claimed he was left feeling like a lesser person when his order, which had been paid in full, was turned down.

Ashers, which is run by the McArthur family, declined the request for a cake with an image of Sesame Street puppets Bert and Ernie below the motto Support Gay Marriage. It had been ordered for a private function marking International Day Against Homophobia last May.

The test case, which has split public opinion across Northern Ireland and beyond, is in its second day at Belfast County Court.

The latest from our reporter Deborah McAleese @DeborahMcAleese in court:

  • Case due to run into a third day. Court has been adjourned for the day. Will resume on Monday morning.
  • Ashers QC asks "When the McArthurs put on their bakers apron must they put aside their religious beliefs, the very core of who they are?"
  • "Once a genuine case of conscientious objection is established the state is obliged to protect the rights of the objectors" says Ashers QC
  • Ashers QC says if businesses are forced to produce goods against their religious beliefs it would "allow the malicious to stir up trouble"
  • "When individuals are forced to produce goods promoting a cause with which they strongly disagree, that is the antithesis to democracy"
  • This is plainly not a sexual orientation case" Mr Scoffield QC for Ashers says
  • Ashers' QC David Scoffield says Mr Lee's "perception of the reason" his order was refused is "irrelevant".
  • QC says he doesn't "want to minimise the hurt the plaintiff says he feels" but suggests Mr Lee was perhaps being "over sensitive"
  • "If a heterosexual couple had placed the same order they would have got the same response" Ashers QC tells court
  • Barrister for Ashers tells judge the issue isn't how much sympathy there is for Mr Lee but must be determined objectively & dispassionately
  • "It was the message on the cake that was the issue and not any characteristic of the plaintiff himself" Ashers lawyer tells court
  • "Ashers serve gay customers in their shop on a daily basis"
  • The defendants didn't know and didn't care what the plaintiff's sexual orientation was" their barrister tells court
  • Equality Com told Ashers they would not litigate if there was an immediate acknowledgment the business breached equality law, court is told
  • QC for Ashers Bakery David Schoffield tells court "As a matter of pure domestic law properly analysed there was no discrimination in this case"
  • "I was wrestling it over in my heart and mind" Colin McArthur tells court
  • Colin McArthur tells court he discussed with his wife "how we could stand before God and bake a cake like this, promoting a cause like this"
  • Colin McArthur, director of Ashers, takes the stand to give evidence
  • Daniel McArthur has finished giving evidence. Legal discussions ongoing over whether his father should be called to take the stand
  • Daniel McArthur: "We weren't doing it in defiance of the law. Before God it's not something we could do"
  • Daniel McArthur tells court he discussed the position Ashers should take with an elder at his Church
  • "As Christians gay marriage is contradictory to the Bible. We believe as Christians we cannot put it on a cake"
  • Daniel McArthur tells court " We believe the business is being given to us by God and how we use it is on our shoulders"
  • Mrs McArthur has finished giving evidence. Her son Daniel, Ashers manager, will now give evidence
  • "Do you not think you should have immediately told Mr Lee (the order would not be fulfilled)?" Mrs McArthur is asked. "No" she replies
  • QC for Mr Lee: "As of that date you might have been prepared to fulfil the order. After all, you're prepared to make Halloween cakes"
  • "In my heart I knew I would not be able to fulfil the order" Mrs McArthur tells court
  • Mrs McArthur said she accepted Mr Lee's order because she didn't want to embarrass him or have a confrontation in the shop
  • Mrs McArthur admits leaflet publicising their cake services doesn't say there are any limitations to the graphics they use
  • Gareth Lee's barrister tells Mrs McArthur "I'm not here for religious debate"
  • Mrs McArthur tells court she would have "felt wrong in my own conscience putting it on a cake"
  • "The problem was with the message on the cake. As a Christian I do not support gay marriage" Karen McArthur
  • Karen McArthur tells the court: "I've been a born again Christian since I was 7. I love The Lord & seek to please him in way I live my life"
  • Karen McArthur, who initially accepted Mr Lee's order, is taking the stand

The Equality Commission, which monitors compliance with equality laws in the region, had initially asked for the bakery on Belfast's Royal Avenue to acknowledge it had breached legislation and offer "modest" damages to the customer.

When Ashers refused, the commission, a publicly funded watchdog, proceeded with the legal action.

Describing the case as "complicated", Mr Scoffield branded the legal action as a "knee-jerk" reaction.

If a heterosexual person had requested the same cake bearing the same message they too would have been refused, the barrister said.

Mr Scoffield added: "It was the content of the cake, not the characteristic of the customer or anyone associated with him.

"There was no discrimination in this case."

The case, which has made headlines worldwide, is being heard by district judge Isobel Brownlie.

Earlier Karen McArthur, a director of the baking firm who took the cake order, acknowledged that she had always known she could not proceed with the request because of her opposition to same-sex marriage.

Mrs McArthur, who has run the bakery with her husband Colin for more than 20 years, said: "I knew in my heart that I could not put that message on the cake."

Mrs McArthur, a member of Dunseverick Baptist Church, revealed that she had been a born-again Christian from the age of seven and had always tried to "please God" with the way she lived her life.

The order was taken to avoid a confrontation and to save the embarrassment, she claimed.

Mr Lee was later contacted by telephone and told apologetically that Ashers could not make the cake.

"I did not want to embarrass him or have a confrontation in the bakery," Mrs McArthur told the court.

She later added: "The problem was with the message on the cake because, as a Christian, I do not support gay marriage."

Nine members of the McArthur family work at the bakery business, which has six branches, employs around 80 staff and delivers across the UK and Ireland, the court heard.

Barrister Robin Allen QC, representing Mr Lee, presented a promotional leaflet which he claimed showed the firm was willing to produce Halloween cakes.

"Witches are hardly consistent with promoting Christian beliefs," Mr Allen said.

Co-owner Colin McArthur was also called to give evidence.

Although he had not provided a witness statement for the proceedings, he described how he had agonised over the moral dilemma but a family decision was made to refuse.

He said they talked about how they could "stand before God" by making a cake promoting gay marriage.

Mr McArthur said: "I spent a day or two thinking it over and wrestling with it in my own heart.

"As far as I can recollect, either on the Saturday or Sunday we were both of the same opinion that my wife and myself, we both of the same mind that we could not proceed and make the cake."

Meanwhile, Daniel McArthur, Ashers general manager, said the decision to decline the order had been made regardless of the legal consequences.

Even though he was unaware of the "ins and outs" of equality legislation, Mr McArthur said he could not compromise his deeply held Christian beliefs opposing gay marriage.

He said: "The reason for the decision was that, as Christians, we just did not feel that putting the message on a cake ... Gay marriage is clearly in contradiction of the Bible.

"We felt as Christians we could not put that message on a cake."

Mr McArthur, a member of the Trinity Reformed Presbyterian Church, told the court: "We knew the decision in our conscience as Christians was one that we had to make.

"That's why I said to mum regardless, as Christians we are bound by what we believe.

"This is what we are bound to do."

The court was told Mr McArthur, the eldest of three boys, was appointed general manager at his parents' company two years ago.

He said the family had not taken legal advice but he had telephoned a church elder to "ask his thoughts" on the matter.

"We were not doing it in defiance of the law," added Mr McArthur. "I think it is quite obvious that we do not know a lot of the ins and outs of the law.

"Our Christian faith is of utmost importance to us. It is how we run our lives; it is how we live our lives; it is how we bring up our families...

"Before God, this is something we couldn't make."

Throughout the hearing Karen McArthur clutched her husband's arm. The couple sat beside their son Daniel and his wife Amy in the main body of the court.

On the other side of the large dock, normally used to hold criminals facing trial, Mr Lee sat listening intently, supported by male and female friends.

The public gallery of courtroom number 12 in the large Laganside complex was almost packed to capacity with Christian campaigners as well as gay rights activists.

Same-sex marriage remains a contentious issue in Northern Ireland and attempts to have it legalised have been repeatedly rejected by the devolved Assembly at Stormont.

The cake row has prompted a proposal to include a so-called "conscience clause" in equality legislation.

The Democratic Unionist Party, whose MLA Paul Givan is bringing forward the Private Members' Bill, says businesses should have the right to refuse to provide services they believe could compromise their religious beliefs.

However, Sinn Fein has vowed to veto the move.


Day 1: Ashers gay cake case: If you're in business your door must be open to all, QC tells Belfast court

By Deborah McAleese

The gay activist at the centre of the Ashers Bakery row told a court he felt like a "lesser person" when the company refused to bake him a cake.

As the landmark civil case between religious freedom and equality rights got under way in Belfast yesterday, Gareth Lee said he was left to feel that he "wasn't worthy" because of his sexuality when his order for a cake endorsing gay marriage was cancelled by the Christian-run bakery.

Before the case began, the company's manager Daniel McArthur said he was placing his trust in God.

He added that the company's problem "was with the message not the customer", and said that it went against their "sincerely held beliefs".

Mr McArthur arrived in court with his wife Amy and his mother Karen, a director at the family-run business, to defend allegations of discrimination brought by Mr Lee with the support of the Equality Commission.

The DUP's Edwin Poots and TUV leader Jim Allister joined a large crowd in the public gallery to listen to the case.

Mr Lee's lawyer, Robin Allen QC, told County Court Judge Isobel Brownlie that the law must not be determined "by those who shout loudest".

He said that large businesses like Ashers "cannot be allowed to break contracts with individuals... in a way which is in breach of equality law".

"If that is allowed the rule of law is worth nothing," he added.

The court was told that Mr Lee was a regular customer at Ashers' Royal Avenue store in Belfast. In May last year he wanted to purchase a cake for a forthcoming event to mark Anti-Homophobia Day.

After reading a leaflet about Ashers cake services, he placed an order with Karen McArthur. He asked for a cake bearing the slogan "support gay marriage" along with a picture of Bert and Ernie from Sesame Street and the logo of the Queerspace organisation he belongs to. Mrs McArthur accepted the order and it was paid in full by Mr Lee.

A few days later, after discussing the matter with her daughter-in-law Amy McArthur and her son Daniel, Mrs McArthur contacted Mr Lee to say Ashers could not fulfil his order because of their Christian beliefs.

"This is not a company that had said to its staff 'we have scruples about what we do,' Mr Allen told the court. "You might have thought that if the company did have scruples the director would know. [Mr Lee] did business with the director. You would have thought those scruples would have been made aware at that stage but they weren't."

"Even religious bodies, if they venture into commercial practices, cannot discriminate. If you are engaged in commerce your doors must be open to everybody. You must supply goods and services to everybody," Mr Allen said.

He added: "In a province where sectarianism has been rife in the past, if there's one thing that can glue diverse communities together is that they can do business with each other."

Giving evidence, Mr Lee said that he "felt sorry" for Mrs McArthur when she told him they could not fulfil his order as she was so apologetic.

When he was told the order was cancelled because of religious beliefs, he said he felt: "I wasn't worthy of service because they were Christian".

"That was the message that struck me. It made me feel not worthy, like I'm a lesser person and to me that is wrong," Mr Lee added.

The case continues today with lawyers for Ashers Bakery giving evidence.

Key figures in the case

THE McARTHURS: Daniel McArthur is general manager of Ashers Baking Company. He refused a request to make a cake with the words 'Support Gay Marriage' below an image of Sesame Street characters Bert and Ernie. Married to Amy with a daughter, Robyn, Mr McArthur says: "We are Christians and our Christianity reaches to every point of our lives, whether that's at home or in the day-to-day running of the business."

GARETH LEE: Gareth Lee made the complaint against Ashers Bakery after he requested and paid for the cake on May 9. Mr Lee was contacted two days later with the message that the bakery could not fulfil the order because they were Christian, and a refund was offered. Described as an LGBT activist, Mr Lee is pictured on the website of QueerSpace in Belfast at the city's Gay Pride parade in 2008 with a 'Support Gay Marriage' poster featuring Bert and Ernie - the exact same design requested for the cake.

ROBIN ALLEN: A QC specialising in equality, discrimination and human rights law, Mr Allen is representing Gareth Lee. He recently acted successfully for a gay couple who were turned away from a guesthouse in Cornwall run by a Christian couple. The Supreme Court ruled that it was unlawful discrimination for the B&B owners to refuse a double-bedded room to the same-sex couple. Mr Allen has said his work is "nearly always concerned with the most difficult cases. Often these are test cases exploring new areas of law."

DAVID SCOFFIELD: A Northern Ireland-based barrister who practises principally in constitutional, administrative and public law, Mr Scoffield represents Ashers. He was appointed a Queen's Counsel at the age of just 34 in 2011. Recently, he represented a gay man who brought judicial review proceedings against the ban imposed by former Health Minister Edwin Poots on gay men giving blood. Mr Scoffield told the High Court the lifetime ban was unjustifiable and said it had been influenced by Mr Poots' religious beliefs.

ISOBEL BROWNLIE: One of Northern Ireland's most senior female members of the judiciary, Ms Brownlie has the task of deciding the outcome of the case. She was appointed a District Judge in September 1997 after practising as a solicitor between 1984 and 1997. She was previously a Deputy District Judge between 1993 and 1997 and has served as a committee member of the UK Association of Women Judges.

Statement read by Daniel McArthur outside Laganside Court ahead of the hearing

"Ashers Baking Company is, and always has been, willing to serve any and every customer who comes through our doors. We love serving people. Our problem with producing the cake we were asked to make last year was with the message not the customer. We just didn't want to be forced to use our creative skills to help endorse and promote a campaign message that went against our sincerely held religious beliefs. We are just trying to be faithful to the Bible.

"We think it is wrong to use the laws to force anyone to say something that they oppose and hope that the court will take the same view. There are obviously big issues at stake, not for just us, about things like freedom of conscience and freedom of expression.

"It's not easy for us being in the middle of all this. We wish it hadn't happened. But I would like to thank all our friends and family, and Christians from all over the British Isles and beyond for their prayers and their support. We have been truly humbled by the support we have received from people from all walks of life.

"Tuesday's public meeting showed the scale of public support and we were just so thankful for that. We don't know what the outcome of the case will be but we do know that God is faithful and we place our trust in Him. Thank you."

Additional reporting PA

Further Reading

Ashers gay cake case: If you're in business your door must be open to all, QC tells Belfast court

Ashers gay cake battle: Legal clash ignites passions around the world

Conscience Bill will not solve crisis

Ashers gay cake row: Courtroom clash of lawyers and media scrum outside, all because of bakery order    

Ashers gay cake battle: 'If contracts can be broken the law is worth nothing'

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