I have changed my mind. Much as I wish to defend the gay community, I also want to defend freedom of conscience, expression and religion.
Peter Tatchell writes in the Guardian:
Like most gay and equality campaigners, I initially condemned the Christian-run Ashers Bakery in Belfast over its refusal to produce a cake with a pro-gay marriage slogan for a gay customer, Gareth Lee. I supported his legal claim against Ashers and the subsequent verdict – the bakery was found guilty of discrimination last year. Now, two days before the case goes to appeal, I have changed my mind. Much as I wish to defend the gay community, I also want to defend freedom of conscience, expression and religion.
The saga began in 2014 when the bakery said it was not willing to ice a cake with the words “support gay marriage” and the logo of the equality group Queer Space, claiming the message was contrary to its Christian beliefs. This struck many of us as anti-gay discrimination based on religious-inspired homophobic prejudice. Ashers believes that the relationships of lesbian, gay, bisexual and transgender (LGBT) people are wrong and should not be eligible for the status of marriage. They translated these beliefs into action and declined to make the cake. Ashers would have decorated a cake with a message celebrating traditional heterosexual marriage and promoting a Christian organisation. Surely this was an example of clear-cut anti-gay discrimination?
Gareth Lee’s legal case against Ashers was backed by the Equality Commission of Northern Ireland. It argued that the bakery’s actions breached Northern Ireland’s Equality Act and Fair Employment and Treatment Order, which prohibit discrimination in the provision of goods, facilities and services on the respective grounds of sexual orientation and political opinion. Last May a Belfast court found Ashers guilty of discrimination on both grounds, ordering it to pay Lee £500 compensation.
I profoundly disagree with Ashers’ opposition to same-sex love and marriage, and support protests against them. They claim to be Christians, yet Jesus never once condemned homosexuality, and discrimination is not a Christian value. Ashers’ religious justifications are, to my mind, theologically unsound. Nevertheless, on reflection the court was wrong to penalise Ashers and I was wrong to endorse its decision.
The law suit against the bakery was well-intended. It sought to challenge homophobia. But it was a step too far. It pains me to say this, as a long-time supporter of the struggle for LGBT equality in Northern Ireland, where same-sex marriage and gay blood donors remain banned. The equality laws are intended to protect people against discrimination. A business providing a public service has a legal duty to do so without discrimination based on race, gender, faith and sexuality.
However, the court erred by ruling that Lee was discriminated against because of his sexual orientation and political opinions.His cake request was refused not because he was gay, but because of the message he asked for. There is no evidence that his sexuality was the reason Ashers declined his order. Despite this, Judge Isobel Brownlie said that refusing the pro-gay marriage slogan was unlawful indirect sexual orientation discrimination. On the question of political discrimination, the judge said Ashers had denied Lee service based on his request for a message supporting same-sex marriage. She noted: “If the plaintiff had ordered a cake with the words ‘support marriage’ or ‘support heterosexual marriage’ I have no doubt that such a cake would have been provided.” Brownlie thus concluded that by refusing to provide a cake with a pro-gay marriage wording Ashers had treated him less favourably, contrary to the law.
This finding of political discrimination against Lee sets a worrying precedent. Northern Ireland’s laws against discrimination on the grounds of political opinion were framed in the context of decades of conflict. They were designed to heal the sectarian divide by preventing the denial of jobs, housing and services to people because of their politics. There was never an intention that this law should compel people to promote political ideas with which they disagreed.
The judge concluded that service providers are required to facilitate any “lawful” message, even if they have a conscientious objection. This raises the question: should Muslim printers be obliged to publish cartoons of Mohammed? Or Jewish ones publish the words of a Holocaust denier? Or gay bakers accept orders for cakes with homophobic slurs? If the Ashers verdict stands it could, for example, encourage far-right extremists to demand that bakeries and other service providers facilitate the promotion of anti-migrant and anti-Muslim opinions. It would leave businesses unable to refuse to decorate cakes or print posters with bigoted messages.
In my view, it is an infringement of freedom to require businesses to aid the promotion of ideas to which they conscientiously object. Discrimination against people should be unlawful, but not against ideas.
