Refusing to bake a cake is not discrimination | Joseph Prebble

If anyone heard me semi-audibly whisper-shout ‘f*** off’ at my phone screen in statistics yesterday morning, know that it was not because of my phone being slow or a lack of coffee. No, it was the death of true justice and freedom of opinion that should act as a warning to everyone who may one day find themselves at the unfortunate end of anti-thought laws. That is, everyone.

Ashers Baking Company, a business in Northern Ireland owned by a Christian family, had the temerity a couple of years ago to decline to bake a cake because it would have read ‘Support gay marriage’ in icing. Most people will probably recall this case. The man who ordered the cake, Gareth Lee, then spat his dummy out and the Equality Commission took up the case, culminating in this morning’s long-awaited verdict at an appeals court. The verdict was to find the bakery guilty.

The initial cry from the never-satisfied fringe of bigots that once hounded a Christian bed and breakfast out of business (another famous case) and that promptly followed the case that came to be known as #gaycake was to cry ‘discrimination’. Now, the Oxford English dictionary defines ‘discrimination’, at least in the legal sense in which we are interested, as ‘the unjust or prejudicial treatment of different categories of people, especially on the grounds of race, age, or sex’.

Let us digest this a little. Discrimination in this context requires a differentiation of treatment of an individual or collection of individuals on the specific grounds of their nature. In this case, the issue is sexuality. So discrimination would logically imply a treatment intentionally meted out to Mr Lee because he was gay. Indeed, this was rejected in the original ruling in 2014, when, as yesterday’s ruling observes, if the judge at the time ‘had come to the view that the order was cancelled because [Lee] was perceived as being gay, this would have been the most straightforward case of direct discrimination’ and this ‘finding was not material to her determination’. In other words, Lee’s sexuality was and remains an irrelevance, and there is no proof, nor can there be any serious contention, that the refusal was on such grounds.

Instead, the court has found an altogether sneakier way of supposedly proving direct discrimination. The court stated that the bakery ‘would not have objected to a cake carrying the message “Support Heterosexual Marriage” or indeed “Support Marriage”. We accept that it was the use of the word “Gay” in the context of marriage which prevented the order from being fulfilled… Accordingly this was direct discrimination”. The law’s view is now plain that to refuse to endorse same-sex marriage as a concept is to directly discriminate against the LGBT demographic.

What balderdash. To believe that separate institutions should exist to cater to different purposes does not imply a dislike or preference for inferior treatment of a set of people on the grounds of their sexuality. Unless one must now believe that, say, pensions ought not to exist because they discriminate based upon age, there should be no requirement to endorse a model of financial and legal binding with which one disagrees. The court further proposed that ‘it was not suggested that there was any approbation of the message on the face of the cake’. If an individual feels that a certain action would akin to an endorsement of a message, why should they not be allowed to feel that way? The apparatus used to print a message upon icing, and the premises in which it is located, are the property of the bakery. And if certain media now exist via which people must on demand display a message, could we at least know where people are allowed not to print a message with which they disagree?

Many people with reservations about same-sex marriage are happy with some form of union. Civil partnerships have always struck me as strange and an almost patronising sop to gay people who wish to commit to a long-term relationship in the same way as a marriage. Civil partnership sounds more commercial than romantic. Since same-sex marriage was a concept that the country was largely not yet willing to accept, the 2004 introduction of civil partnerships sought to settle this issue and provide material rights without redefining marriage. Still (quite reasonably) not satisfied, many LGBT rights activists pushed for full marriage equality or redefinition (choose your own semantics), achieved in 2013, and civil partnerships were left as a weird legal hangover from this nine-year era.

The law’s view is now plain that to refuse to endorse same-sex marriage as a concept is to directly discriminate against the LGBT demographic.

These fights were won by civil argument and courtesy. Until a few years ago, I was stubbornly against same-sex marriage, and ultimately gave way when good arguments were presented, and the libertarian principle of ‘if it does not harm anyone else, why not?’ seemed virtually irrefutable. Hence today I have no problem with same-sex marriage. There are many who successfully manage private religious beliefs and tolerance of others believing or doing differently, thinking no differently of those involved. This balance exists harmoniously with contraception, fornication, not going to Mass on Sunday, and so on, so why not same-sex marriage? Every time, however, I heard slurs and accusations of various terms ending in ‘phobic’ and ‘ist’, all without justification, my view of marriage as exclusively heterosexual became further entrenched.

Perhaps more telling of this ridiculous case is the needlessness of it all. Suppose for a moment that yesterday’s decision is clearly sound (it is not) and universally agreeable (it is not). What sort of insufferably spiteful moron drags a case on to vilify and incur heavy liabilities onto a family business? The ruling explicitly states that Lee ‘was given a refund and he was able to secure a similar cake from another outlet’. Now the sensible approach would be to enjoy your cake and move on. But no: that simply would not do. So the toys flew out of the pram and a decent, innocent family was required to answer before a court and a good name was associated with bigotry and homophobia. You see, this case is all about love and tolerance.

While the ruling talks in sweet-sounding language about how the faith community ‘should continue to contribute to the well-being of the Northern Ireland economy and that there should be no chill factor to their participation’, the action of the decision speaks far louder than its words. It is clear that the establishment of clear liberties and rights for people who object to same-sex marriage has not kept up with the welcome progression of LGBT rights, and the speed at which a generally pro-traditional marriage political consensus has morphed into one where deviant thought is snarled at has been astonishing. To use America as an example, it was standard course as recently as 2008 for the likes of Barack Obama, Joe Biden, and Hillary Clinton to oppose same-sex marriage. Clinton, that well-known paragon of moral authority and consistency, switched seven years later to decrying that ‘you can even be denied a wedding cake for being gay’, another technical misrepresentation.

This fracture between a quasi-fascist lobby (which I distinguish from the wider LGBT rights movement) that is decreasingly interested in tolerance and liberty and social conservatives who are sceptical of some measures seems increasingly frightening and may not be healed for some time. Every action has an equal and opposite reaction, and we cannot necessarily expect the quiet Christian community to happily take vilification for much longer. Efforts at understanding and reconciliation are necessary, and veteran LGBT rights campaigner Peter Tatchell’s statement on Twitter that the verdict is ‘wrong’, and ‘sets a dangerous, authoritarian precedent’ is brave and laudable. If today you can risk your livelihood and reputation for standing up for freedom of non-expression, then this error cannot be corrected soon enough.

Joseph Prebble is a second-year student of Mathematics at the University of Bath.


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