Stephen Kneale

Ashers bakery “gay cake” ruling, implications and observations

Yesterday, I offered a recap of the Ashers Bakery case that was being heard in the Supreme Court. You can read that here. The ruling itself was delivered yesterday and the Supreme Court found in favour of the bakery.

The Supreme Court judges reached a unanimous decision in the case:

The court judgement couldn’t be clearer: ‘nobody should be forced to have or express a political opinion in which he does not believe.’

The respective responses of the McArthur family of Asher’s Bakery and Gareth Lee, who brought the case against Ashers with the help of the Equalities Commission for Northern Ireland.

Here is the problem with the respective responses to the judgement. Mr Lee focuses on the fact that he felt like a second-class citizen when his order was refused. The McArthurs focus on the fact that Mr Lee was, is and remains welcome in their shop but that they cannot lend their expertise to support the particular message he wanted.

The court were clear in their judgement that there was no discrimination against Mr Lee as a person. There was no discrimination because of his political views nor his sexual orientation. The McArthurs simply could not make a cake supporting a political campaign with which they disagreed.

For Mr Lee, this doesn’t matter. His concern is how he felt. It matters not that the bakers objected to the message he was asking them to make. It matters not that he had been served in the shop on previous occasions. It doesn’t even matter whether the McArthurs intended to offend him or discriminate against him. He cares only that he felt like a second-class citizen and feels that his perception ought to govern what is punishable by law.

He claims to care about the implications for all of us but the consequences of what he was asking, should the court agree with him, were wide-reaching and more than a little terrifying. He was asking for all business to be compelled to support causes with which they deeply disagree. This would open the door to Jewish establishments producing pro-holocaust denying materials, Muslim business being forced to produce goods mocking their prophet Mohammad and even LGBT+ campaigners being forced to produce things that promote the rescinding of gay marriage or the restoration of Section 28. In fact, the logical end of this action would have been to simultaneously render certain thoughts unsayable whilst, at the same time, compelling them to be said.

In truth, anything the government considers ‘right thought’ could be a ground to compel someone to believe and advocate for it, no matter how firmly they disagree. For those who have ever demurred from the government agenda, who have ever disagreed with a policy with which the government (of whatever colour) have pressed through without heed to demonstrations and public outcry to the contrary, what Mr Lee was asking for should be terrifying indeed. We should all be grateful that the Supreme Court has upheld a principle of freedom of conscience and rejected the idea that beliefs should be compelled in a free society.

What is more, Mr Lee was asking for his feelings to take precedence over the McArthur’s right to freedom of belief and expression. This would also have worrying implications. We are already beginning to see the introduction of ‘hate incidents’ that are merely perceived as hateful by the so-called victim. Had Mr Lee been successful in his case, a feeling of inferiority and discrimination would trump the right of an establishment to act in accord with its beliefs and irrespective of whether they had intended to discriminate or not. The problem with trial by feeling is that there really is no way to defend against it. If one feels discriminated against, how can anybody possibly prove otherwise if the crime is based upon whatever you happen to feel?

Mr Lee argues that ‘all I wanted was a cake.’ Maybe I am being uncharitable, but I find that claim a little hollow. The man who just wants a cake shrugs his shoulders at the rejected order and takes his custom elsewhere to an establishment that will bake him whatever he wants. The response of a man who merely wants a cake is not to go to the ECNI and embark upon protracted legal proceedings to make sure that the particular cake you want comes from the only bakers you are aware of who won’t make it.

Maybe I am cynical, but let’s not forget that Mr Lee is described repeatedly in the newspaper reports as a ‘gay rights activist.’ Anybody who has spent any time around any activism or any sort know that test cases are a good way of bringing your particular agenda to the table. But it should be noted that it has been a particular tactic among LGBT+ activists to search out those whom they believe will disagree with their particular campaign du jour knowing that the refusal to do as they ask is coming from those whose consciences they know cannot bend. Legal action is swiftly undertaken and a public court case, in which a narrative of victimisation is brought, in a bid to run out of business those who will not affirm their particular campaign. See, here, here and here for examples.

I cannot say with cast iron certainty that this is what Mr Lee was doing. I am merely putting together bits of information that have typically been true. Mr Lee is being called a gay rights activist. Rather than go to another establishment to get his cake, he went straight to the ECNI to launch costly legal proceedings. He has sought to play the victim both as one discriminated against and whose feelings have been badly hurt, using loaded phrases such as ‘second-class citizen.’ He did all this despite having been served several times previously by Ashers Bakery. These just don’t seem to be the actions of someone who really thinks, ‘all I wanted was a cake.’

Mr Lee also commented that he wanted certainty in the law. He now has it in the judgement delivered by the Supreme Court. Nobody can compel anybody else to think, say or produce goods affirming what they do not believe. That is surely a win for everybody? Mr Lee doesn’t think so. He believes all should have to affirm what he thinks. The McArthurs think Mr Lee should be free to affirm whatever he wants, so long as they are free to do the same. They are still happy for him to come back into their shop and buy the same goods that they would serve to anybody else. I, for one, am glad that they won.